The new histories of international criminal law : retrials [First edition] 9780191868153, 0191868159

The language of international criminal law has considerable traction in global politics, and much of its legitimacy is e

1,168 162 4MB

English Pages 0 [289] Year 2019

Report DMCA / Copyright

DOWNLOAD FILE

Polecaj historie

The new histories of international criminal law : retrials [First edition]
 9780191868153, 0191868159

Citation preview

i

T H E H I S TO RY A N D  T H E O RY O F I N T E R N AT I O N A L   L AW

The New Histories of  International Criminal Law

ii

T H E H I S TO RY A N D T H E O RY O F I N T E R N AT I O N A L   L AW General Editors N E H A L   B H U TA Chair in International Law, University of Edinburgh

A N T H O N Y   PA G D E N Distinguished Professor, University of California Los Angeles

B E N J A M I N S T R AU M A N N 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. p reviou sly p u blis h ed in this serie s 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

iii

The New Histories of International Criminal Law Retrials Edited by

I M M I TA L L G R E N and

T H O M A S S KO U T E R I S

1

iv

1 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 Several Contributors 2019 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.

v

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).

vi

vi

Foreword

(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 eighteenth-​ century 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).

vi

Foreword

vii

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

vi

viii

Foreword

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).

ix

Foreword

ix

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 institution-​ building. 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.

x

x

Foreword

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.

xi

Table of Contents Foreword Martti Koskenniemi List of Contributors 1. Editors’ Introduction Immi Tallgren and Thomas Skouteris 2. Unprecedents Gerry Simpson 3. Founding Moments and Founding Fathers: Shaping Publics through the Sentimentalization of History Narratives Kamari Maxine Clarke 4. From the Sentimental Story of the State to the Verbrecherstaat, Or, the Rise of the Atrocity Paradigm Lawrence Douglas 5. International Criminal Justice History Writing as Anachronism:  The Past that Did Not Lead to the Present Frédéric Mégret 6 Redeeming Rape: Berlin 1945 and the Making of Modern International Criminal Law Heidi Matthews 7. ‘Voglio una donna!’: On Rewriting the History of International Criminal Justice with the Help of Women Who Perpetrated International Crimes Immi Tallgren 8. Writing More Inclusive Histories of International Criminal Law: Lessons from the Slave Trade and Slavery Emily Haslam 9. The ‘Africa Blue Books’ at Versailles: The First World War, Narrative, and Unthinkable Histories of International Criminal Law Christopher Gevers 10. Crimes Against Humanity: Racialized Subjects and Deracialized Histories 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 Franziska Exeler

v xiii 1 12 30 54 72 90

110 130 145 167

189

xi

xii

Table of Contents

12. Theodor Meron and the Humanization of International Law Aleksi Peltonen 13. Histories of the Jewish ‘Collaborator’: Exile, Not Guilt Mark Drumbl

220

Index

253

237

xi

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

xvi

1

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. Editors’ Introduction. Immi Tallgren and Thomas Skouteris. © Immi Tallgren and Thomas Skouteris, 2019. Published 2019 by Oxford University Press.

2

2

Editors’ Introduction

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 sub-​ state 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.

3

Context

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).

4

4

Editors’ Introduction

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

5

Objectives

5

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).

6

6

Editors’ Introduction

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.

7

The Essays

7

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 under-​ exploited 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).

8

8

Editors’ Introduction

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

9

The Essays

9

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).

10

10

Editors’ Introduction

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-​coming- ​ revolution. 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.

1

The Essays

11

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

12

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). Unprecedents. Gerry Simpson. © Gerry Simpson, 2019. Published 2019 by Oxford University Press.

13

‘Before’: Precedent as Bathos

13

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’).

‘Before’: Precedent as Bathos It was a characteristic of early international criminal law that a search for precedents co-​ existed 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

14

14

Unprecedents

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.

15

‘Before’: Precedent as Bathos

15

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. 13  Çubukçu, ‘Exception’ (n 10).

16

16

Unprecedents

be placed in charge of a Europe-​wide extermination programme (rather like the later case involving the Paraguayan Police Chief who takes Jose Filartiga to the station and inflicts unspeakable horrors on him as punishment for his father’s political activities, and becomes a ‘latter-​day pirate’).14 In the end, Arendt remarks that the world’s press had not gathered in Jerusalem to see Bluebeard on trial. The structure of international criminal law’s history, too, is constructed around this sort of bathos.15 The proposed trial of the century at Versailles becomes a smattering of local trials in Leipzig, the great post-​war determinations of the Great Powers becomes a ‘customary international law’ found by the House of Lords in R v Jones [2006] in a sequence of inter-​war failures (a draft convention for this, a mutual pact with one signatory for that, a pact to end all wars except those the signatories want to fight), the late twentieth century sees a history of little old Nazis (loved by their grandchildren) staggering to the dock to account for one of the greatest genocides in history. The International Criminal Court (ICC), beginning in a flush of pomp, ceremony, and the promise of transformative justice, ends up with a relatively minor figure like Lubanga in jail for having deployed child soldiers. In the end it all begins to resemble a scene in Don DeLillo’s White Noise where Professor Gladney is being celebrated by a junior colleague for having invented Hitler Studies: ‘You’ve established a wonderful thing here with Hitler,’ he tells Gladney. ‘You created it, you nurtured it. . . . He is now your Hitler. I marvel at the effort. It was masterful, shrewd and stunningly pre-​emptive. It’s what I want to do with Elvis.’

The history of international criminal law is scattered with Elvises recruited as precedents for Hitlers.

14  Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’ (Winter 2004) 45(1) Harvard International Law Journal 183–​237. 15  Indeed, it becomes hard to think of international criminal law in a non-​bathetic mode. In 1919, the Commission on the Responsibility of the Authors of the War offers up a startling list of German iniquities. These, surely, are the most horrible, indeed, unprecedented, violations that human beings could commit? But this list is odd because the list itself contains a built-​in bathos. The atrocities resemble a musical hall joke where grave offence is punctuated by trivial violation as if man’s inhumanity to man could be captured in the failure of an occupying authority to deliver the mail. But then, maybe the juridification of war itself is an exercise in bathos. Siegfried Sassoon’s ‘butchered, frantic gestures of the dead’ becomes in the eye of the law ‘serious violations of the laws of war’. One senses very clearly here the dropping away. But the list has a strangely proleptic quality as well: What is being described is not unprecedented atrocity but yet-​to-​be witnessed destruction (the atrocities were so obviously inflated, sometimes fabricated. Indeed, the bayoneted Belgian babies of occupation mythology have become a by-​word for war propaganda (this did not stop the once-​estimable Times of London from putting on its front page a story about the Iraqi invaders throwing Kuwaiti babies out of incubators in 1990: a story subsequently shown to be false)). The Commission—​busy documenting German ‘crimes’ (indeed, seeking to bring them into existence as ‘crimes’)—​actually describes a set of atrocities that were yet to be brought into existence as crimes or atrocities (that would occur in 1940). See Commission on the Responsibility of the Authors of the War and the Enforcement of Penalties (1920) 14 American Journal of International Law, Supplement 95–​8,107,112–​25, and Annex II, 127, 135–​54 (1919).

17

‘Never Before’: Unprecedenting

17

‘Never Before’: Unprecedenting Noon, 20 November 1918: Lord Curzon urges the Imperial War Cabinet to support a trial of the Kaiser: ‘The supreme and colossal nature of his crime seems to call for some supreme and unprecedented condemnation’.16 Thus does international criminal justice begin, with a reference to an unprecedented violence that finally provokes—​must give rise to—​the establishment of legal order.17 On one hand though, and this has been the subject of the first section of this essay, this violence is situated in a pattern of history, a trajectory of such acts (each more unprecedented than the next but each requiring a gesture to precedent). The most recent atrocity in this historical sequence becomes the moment when failure to act or constitute law becomes unforgivable. On the other hand, and this is the subject of the first part of this section, the proximate historical juncture is one of a kind, a never-​before-​seen, moment of human savagery. So, the slogan of international criminal law—​‘never again’—​needs to be supplemented by the slogan; ‘never before’. In this sense, international criminal law imagines itself to be constructed around one point in time, that is, the ‘never before, never again’ moment: the unprecedented atrocity, wrenched from history, that ends atrocity. All of this requires a screening out of previous atrocities in the name of unprecedenting. Humanity must be rendered innocent. And this unprecedenting occurs in relation to two other ‘pasts’ of international criminal justice, as well. In one case, awkward trial precedents are forgotten or obscured. In the other, there is the unprecedenting of what we might think of as early anti-​anti-​impunity advocates. These three acts of unprecedenting are the subject of the rest of this section of the essay.

Unprecedenting past atrocity In 1944, Georg Schwarzenberger wrote, in his book Totalitarian Lawlessness, ‘The human mind revolts at the idea of covering these deeds with an all-​forgetting mantle of oblivion . . . ’.18 And yet, international criminal law’s counter-​history is a history of this ‘revolting idea’ in action. The demand has traditionally been amnesia not

16  CAB 23/​43 Imperial War Cabinet 37 (1918) 10–​11. 17  Though this might first be an only liminally lawful order. For Arendt, the unprecedented aspect of the Eichmann case was the kidnapping of the suspect in Buenos Aires by Israeli agents (though she also believed that the special nature of Israeli sovereignty and especially the imperative to think of the Jewish diaspora as a proto-​sovereign collective, was unprecedented and misunderstood). Arendt gives the kidnapping a very detached seal of approval: ‘Those who are convinced that justice, and nothing else, is the end of law will be inclined to condone the kidnapping act . . .’ (Eichmann in Jerusalem (n 12) (1963, 1994 edn at 265). This is because of the absence of a satisfactory lawful alternative. But this cannot become a precedent. Indeed, it is a ‘desperate, unprecedented and no-​precedent setting act’ (265). This raises the obvious question: why cannot this be a precedent for similar desperate, now re-​precedented acts? The conditions of necessity can bear repetition, after all. (There is a darker explanation for Arendt’s unprecedenting act here. ‘What are we going to say if tomorrow it occurs to some African state to send its agents into Mississippi and to kidnap one of the segregationist leaders there?’ (264).) 18  Georg Schwarzenberger, International Law and Totalitarian Lawlessness (Cape 1943) 57.

18

18

Unprecedents

remembrance. The history of international criminal law is, in a way, a history of trials not convened, prosecutions not initiated, investigations not begun.19 Impunity might be understood as international criminal law’s state of nature. As Malcolm Bull once said, ‘states didn’t mind their citizens dying as long as another state didn’t do the killing’.20 International criminal law was the law of impunity. One gets a sense of this in, say, the treatment of Napoleon after the Napoleonic Wars. His time on Elba—​almost too merciful an interregnum—​was an impunity that represented, also, a form of sophisticated politics. But more than this, if a reader picks up, say, a history of the Concert of Europe 1815–​1914 and reads its passages on war crimes trials or looks for a reference to ending impunity, well, such references are simply not there. Nobody, bar a handful of bloodthirsty Prussians, was interested in trying Napoleon for atrocities or invasion. Recently I read some of the documents emerging from the Congress of Vienna and my initial impression was that these read as if they had been edited in some way. There are ellipses where there should be trials. Instead of thunderous calls for retribution we have a gentler language of diplomatic nicety. ‘The object of this union is as simple as it is great . . . calm and consistent in its proceedings, it has no other object than the maintenance of peace . . . ’.21 The high-​point of impunity—​perhaps, also a turning point—​came when Hitler celebrated, and provoked the end of, this impunity with his famous question: ‘Who remembers the Armenians?’. This was, more or less, the sort of amnesia demanded by the Treaty of Munster back in 1648. That there shall be on the one side and the other a perpetual . . . Amnesty, or Pardon of all that has been committed since the beginning of these Troubles, . . . but that all that has pass’d on the one side, and the other . . . during the War, shall be bury’d in eternal Oblivion.

International law, then, was—​to restate the point—​the law of oblivion. So, at least one political-​historical project for international criminal law would be aimed at detecting the history inscribed in the legal form but read out of it, the blood in the code—​even a code as bloodless as the Draft Code on Crimes Against the Peace and Security of Mankind.22 This might be a history of atrocity or preventable deaths actively forgotten or subject to un-​remembering.23 I have written elsewhere about 19  This is true even of the contemporary scene. See Leslie Vinjamuri and Jack Snyder, ‘Trials and Errors’ (2003) 28(3) International Security  5–​44. 20  Malcolm Bull, ‘State of Exception’ (2004) 26(24) London Review of Books  3–​6. 21 See Declaration of the Five Cabinets, Aix-​la Chapelle, 15 November 1818. Or maybe a better way to put this is to notice that where there was anti-​impunity, it involved not legalized retribution but either diplomatic censure (states indicating disapproval by withdrawing certain privileges and by declaring diplomatic staff persona non grata) or exemplary punishment. It’s not as if the pre-​modern treatise can’t be quite bloodthirsty. Lawrence, eg, is sanguine (sanguinary, in fact) when it comes to the treatment of unauthorized combatants (those whose crime is fighting back against an occupier). The laws of war, he avers, allow the summary execution of such individuals (T. Lawrence, The Principles of International Law Part 2 (Macmillan & Co 1911) 516–​17). 22  Michael Foucault, Lectures at the College de France 1975–​1976, 21 January 1976 (Picador 2003) 56. About half way through this lecture, Foucault re-​describes the idea that becomes international criminal law. 23  Stan Cohen, ‘State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past’ (1995) 20 Law and Social Inquiry 7; C. S. Nino, Radical Evil on Trial (Yale University Press

19

‘Never Before’: Unprecedenting

19

this in relation to Vergès and rupture in the trial of Klaus Barbie and the various acts of conducting un-​remembering conducted at Nuremberg so here, in the interests of time and space, I will go back one of the origins of international criminal law for an original act of un-​remembering.24 It begins, again, with Raymond Poincaré, announcing, at the opening of the Versailles Peace Conference: ‘Humanity can place confidence in you, because you are not among those who have outraged the rights of humanity’.25 But humanity here included the Belgians, French, and British each of whom were, by this time, responsible for three centuries of violent, certainly racially inflected, Empire. Though the Imperial War Cabinet meeting on 20 November began at noon, there was a lot to get through. The main line of business was the disposition of the Kaiser. What were the representatives of humanity going to do about this outlaw? But first, there were some minor matters to take care of. Lloyd George: ‘there are two or three questions we are not clear about . . . Palestine, East Africa . . . questions of that kind’ (at 2). ‘We have not quite settled in our minds what sort of government we will set up in Mesopotamia’ (emphasis added). It was ever thus. Here are the representatives of civilization, just prior to elaborating the idea that aggressive war would be a crime against humanity, reordering their imperial outposts: themselves, as Justice Pal remarked at Tokyo, the result of three centuries of aggressive war. I went back recently to the National Archive documentation from this meeting. How did the Imperial War Cabinet get from its own imperial consolidations and restructurings to the enemy’s crimes against humanity? After all they each seemed to be grounded on precisely the same combination of non-​consensual territorial acquisition and mass violations of human rights. Was there a hint of self-​consciousness? What was the hinge? Between the surprisingly cursory discussion of Palestine, Syria, and Iraq, and the lengthier debate about the Kaiser, there is one short announcement. A telegram is read out from the Association of Universal Loyal Negroes of Panama. It reads: Negroes throughout Panama send congratulations on your victory and in return for services rendered by the negroes throughout the world in fighting . . . beg that their heritage wrested from Germany in Africa may become the negro national home with self-​government.

This is passed over in silence—​and with it a counter-​history of international criminal law that might have something to say about the massacre of the Herero or Leopold’s Congo. The discussion then moves on to the Kaiser’s terrible crime of 1996); Ed Morgan, ‘Retributory Theater’ (1988) 3 American University Journal of International Law and Policy 1, at 62 (noting, in respect of the Demjanjuk trial, that ‘in describing dramatically . . . the nightmarish events that occurred (what now seems to be) a lifetime ago, the victims are given another chance to purge the past and celebrate its having passed’); Shoshana Felman, ‘Theaters of Justice: Arendt in Jerusalem, the Eichmann Trial, and the Redefinition of Legal Meaning in the Wake of the Holocaust’ (2000) 1 Theoretical Inquiries in Law 465, at 498: ‘. . . it is this revolutionary transformation of the victim that makes the victim’s story happen for the first time and happen as a legal act of authorship of history’). 24  eg Gerry Simpson, ‘“In Jerusalem or Argentina”: A Counter-​History of International Criminal Law’ in The Handbook of International Criminal Law (ed. Kastner, Routledge 2018). See, too, José Alvarez, ‘Rush to Closure: Lessons of the Tadic Judgment’ (1998) Michigan Law Review 2061. 25 Documents, Paris Peace Conference (1919) 159.

20

20

Unprecedents

making war on Europe and the shock this delivered to the conscience of mankind. Some deaths are, accordingly, given little or no precedential value.26

Unprecedenting past trials But it is not just unprosecuted atrocity that constitutes a counter-​history of international criminal law. Precursor trials, too, are forgotten. Usually, the history of war crimes trials passes over the inter-​war years in silence. This was a period in which the efforts of progressives seem to be directed at social and economic change, or minority rights treaties or welfare or the sort of softer internationalism found in Geneva. But are the Moscow Show Trials, perhaps, the missing link between Versailles and Nuremberg? Moscow, 1937, is an embarrassing antecedent after all. Judith Shklar defines show trials as the ‘liquidation of political enemies using legal procedure’. Stalin knew all about that but, in this, he does not seem too far removed from Lloyd George and Lord Curzon. Establishing a tribunal for the specific purpose of liquidating or punishing an enemy? This is what the Imperial War Cabinet was debating in 1918. Of course, the Moscow Show Trials were very unlike the Nuremberg War Crimes Trials in many very important respects but the idea that people’s justice or humanity’s justice or a sense of justice can somehow dispose of the need for proper procedure or legal precedent represents a sort of sibling (sublime) dark side of these trials. A show trial is one in which it is obvious that the guilty are guilty. The trial seems otiose, the mere performance of a justice already delivered elsewhere. Vishinsky, the Soviet Prosecutor at Moscow, was also at Nuremberg. During dinner with the judges at Nuremberg he raises a toast ‘To the defendants, they will all hang’. This was before the trial had begun. But Roosevelt, too, was worried about acquittals and his concerns made their way into the IMT Charter, Article 19. But then maybe these trials are as much about political spectacle as they are about legal propriety. For Hannah Arendt, a show trial is a ‘spectacle with prearranged results’ or the obliteration through compulsive staging of ‘the irreducible risk’ of acquittal. The point of the trial is the trial itself: its ramifications, its warnings, it effluxions of terror. George Orwell understood this. Mrs Parsons lives with her two little daemonic children at Victory Mansions. Her drains are blocked, as they often are, and she calls Winston Smith down to help her unblock the sink. The two children torment Winston, calling him a Eurasian spy, threatening to vaporize him and shouting ‘Goldstein’ as he leaves the flat. Mrs Parsons is apologetic; the children are furious, she explains, because she failed to take them to the hanging:

26  Judith Butler, Precarious Life:  The Powers of Mourning and Violence (Verso 2006)  and Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law (Routledge 2014).

21

‘Never Before’: Unprecedenting

21

Some Eurasian prisoners, guilty of war crimes, were to be hanged that evening  . . .  this happened once a month and was a popular spectacle’ (George Orwell, 1984 (1949: 1974 Penguin Books) at 22)

It strikes me as important to think about trials in this way; not as depoliticized programmes of management but as slightly wild-​eyed theatres of revenge: human rights with a vengeance. As one of the observers of the Moscow Show Trials eerily put it: these were ‘dramas of subjective innocence and objective guilt’ (Merleau-​Ponty). This objective guilt was repeatedly enunciated in the months preceding the major trials at Nuremberg and Tokyo where the Nazis are described as the world’s worst criminals and where the defendants were chosen with great care on the basis of political impact. The show trials themselves continued into the 1950s, most famously in Prague where the purpose was not to determine guilt or innocence, nor, even, to remove political opponents but rather to create them. The proceedings there were initially conceived as trials of fairly low-​level apparatchiks. Under pressure from Moscow, President Gottwald found a higher level defendant, Otto Sling, a district party secretary. Under torture, Sling implicated Rudolf Slansky, the General Secretary of the Czech Communist Party, in a fantastic and implausible conspiracy. Finally the Soviet advisers had a defendant of sufficient seniority. The Czechs were initially shocked and bemused. What about the evidence? One Soviet legal adviser, himself soon to be purged, said: ‘We have been sent here to stage trials not to check whether the charges are true’. As for the existence of legal norms, again this didn’t matter. The instincts of the proletariat would stand in for what Kyrlenko, one of the Moscow prosecutors, called ‘Bourgeois sophistry’. And this recalls, too, a Nazi Law of 28 June 1935 referring to the need to punish criminals and deviants according to ‘the sound perceptions of the people’. Ten years later, though, President Roosevelt was worrying about acquittals on technicalities and Robert Jackson—​pressed on the existence of crimes against humanity or aggression—​replied by saying ‘We can avoid these pitfalls of definition if our test of what is a crime gives recognition to those things which fundamentally outrage the conscience of the American people’. The victims of war crimes had become the people in general. Metalegalism remained the only viable solution. This became at trial the idea of ‘shocking the conscience of mankind’.27 Moscow is one sort of precedent for this sort of meta-​legality.

Critical unprecedents The third act of unprecedenting I consider in this section concerns a largely forgotten unprecedented hidden history of critique in international criminal law. In the post-​Second World War era there is a period of resistance to criminalization when books by Rebecca West (A Train of Powder), FJP Veale (Advance to Barbarism), Montgomery Belgion (Victors’ Justice), and Freda Uttley (High Cost of 27  This section is partly drawn from ‘ “In Jerusalem or Argentina”: A Counter-​History of International Criminal Law’ in The Handbook of International Criminal Law (ed. Kastner, Routledge 2018).

2

22

Unprecedents

Vengeance) reject the assumptions of Tokyoberg retribution and open up the way for later figures like Shklar and Arendt. 1946 to 1949 is the moment, too, of the great anti-​anti-​impunity dissent of Justice Pal. I have written elsewhere and extensively about Pal, and the Australian poet, Barry Hill, has recently published a monumental study of (among many, many other things) Pal and Tagore, so I will leave him for the time being.28 There is one particular moment, though, I want to focus on here and that is the period 1949–​1950 when the Bishop of Chichester, George Bell, appeals to the House of Lords for an end to the punishment of German war criminals and Maurice Hankey publishes the first full treatment of anti-​anti-​impunity in his Politics, Trials and Errors.29 Bell is one of the most interesting church figures of the mid-​century. During the Second World War, he offered his home to a number of Jewish refugees, he protested against the carpet-​bombing of Germany, and he was in close contact with members of the German resistance before and during the von Stauffenberg plot. He was an ardent supporter of German rehabilitation after the war and saw the later war crimes trials both as damaging distraction and unseemly vindictiveness. When I encountered Bell in my reading it seemed natural to me that he should be against both the trials (with their concomitant executions) and the bombings. He was a member, if you like, of the anti-​death league.30 At 5.20pm on 5 May 1949, Bell spoke in the House of Lords against anti-​impunity. For Bell, merciful treatment of our enemies is the test of ‘our reputation of justice and humanity’.31 When it comes to justice, he goes on to say that ‘it is very difficult for a defeated foe to appreciate the justice of punishing such crimes . . . when similar charges could be brought against one or more of the allies’. This is a familiar enough charge of victors’ justice.32 But what is now strikingly unfamiliar is the powerful language of clemency (he calls for a ‘permanent clemency programme’), the explicit pleas for ‘general amnesty’, the concern for the well-​being of the imprisoned Nazis in Spandau, the reminder that anti-​impunity can result in seventy-​six trials, sixty-​seven death sentences, and no acquittals (the case of the Yugoslav war crimes trials), the belief that there must be some end to penal process (this is not infinite justice) and, finally, a recognition of the impossibility of trying even a fraction of offenders (even

28  Barry Hill, Peacemongers (University of Queensland Press 2015). 29  Maurice Hankey, Politics, Trials and Errors (Pen-​In-​Hand 1950). See also F. J. P. Veale, Advance to Barbarism (C. C. Nelson Publishing Company 1953); Montgomery Belgion, Victors’ Justice (http://​ www.lulu.com, 4 April 2017); Freda Utley, High Cost of Vengeance (Nabu Press 2011), David Lloyd George, The Truth about the Peace Treaties (Victor Gollancz Ltd, 1st edn, 1938) 94–​114. 30  The reference is to Kingsley Amis’s novel, The Anti-​Death League. As many people have pointed out, there can be a merging or, at least, alignment of humanitarian and military sensibilities and languages in contemporary international law and military policy. In this way, responsibility to protect and international criminal law can be understood as a shared project of exemplary punishment. David Kennedy is essential here. See, Of Law and War (Princeton University Press 2006) and Dark Side of Virtue: Reassessing International Humanitarianism (Princeton University Press 2005) especially. 31  HL (Hansard) Deb 05 May 1949 vol 162 cc 376–​418. 32  General Montgomery had said, too, that Nuremberg made the waging of unsuccessful war a crime.

23

‘Never Before’: Unprecedenting

23

anti-​impunity is always a form of mediated impunity, or a landscape of impunity dotted with the occasional trial). Very little of this mood has survived the recent enthusiasms for international criminal justice. During the 1949 debates, Bell is defended by Maurice (Lord) Hankey, a former Secretary of the Imperial War Cabinet and member of the 1939–​40 War Cabinet. Hankey’s attack on the policy of unconditional surrender and anti-​impunity is extremely robust. This policy produced, according to him, ‘a sadistic orgy of competitive frightfulness . . . frantic war crimes on one side, and, on the other, unlimited bombing . . .’ (at 11). In addition to this, he elaborates the problems of decontextualization, over-​individualization, and bad history that were hinted at in 1919 and became a form of critique by 2013.33 The debate in the House of Lords continues into the night of 19 May but this time concerns the Tokyo War Crimes Trials. Hankey is traduced by several speakers as unpatriotic. It is claimed that he has defamed the Soviet judges at Nuremberg and over-​concerned himself with the irrelevant history of the 1920s. By the time he rises to respond at the end of the debate, it is too late. Hankey ends by saying: ‘The House is so empty now that it is no good my challenging . . . I shall not reply to the other speakers because they have all gone . . . ’ (at 21). Little wonder, then, that Hankey wrote Politics, Trials and Errors as a response to his absent interlocutors. The victors’ justice argument remains front and centre but Hankey has the added advantage of immediacy and proximity. He visits Rotterdam at Christmas, 1948 and discovers two wastelands—​one inflicted by the Germans at the beginning of the war, the other visited upon the city by the Allies during the liberation of Western Europe (at 126). He notices that the Universal Declaration on Human Rights (UDHR) and the IMT Charter work against each other in many ways (Article 10 of the UDHR requiring independent and impartial enquiries and Article 11 prohibiting the imposition of retroactive law). He writes as political leaders are tried and executed in the Eastern Bloc under conditions of imperfect justice and by tribunals composed entirely of former enemies.34 Hankey makes the important point (borrowing from Pal) that international criminal law seems too often unconcerned with the methods of liquidation. According to Pal, the usurpation of ‘lawful authority’ (Pal, Dissent, 31) resulted in a reversion to a period in which the victor could do as he pleased with the vanquished. And commentators have pointed out that the complementarity provisions in the Rome Statute work in a similar manner. When it comes to local jurisdictions, the ICC worries about impunity but not about punitiveness. There is much greater outrage that Libya has refused to release Saif Gaddafi to the court than there was about the slaying of his father, allegedly by a French agent. 33  K. Engle, Z. Miller, and D. Davis (eds), Anti-​Impunity and the Human Rights Agenda (Cambridge University Press 2016); Christine Schwöbel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge 2016); Frédéric Mégret, ‘The Politics of International Criminal Justice’ (2002) 13(5) European Journal of International Law 1261–​84. 34  I have written elsewhere about Rudolf Slansky. Hankey writes about Nikola Petkov, the leader of the Bulgarian Agrarian Party, executed in September 1947 in a trial resembling, for Hankey, the Tokyo War Crimes Trials.

24

24

Unprecedents

At the end of his book, Hankey—​by now in full anti-​punitive flight—​calls for a sort of Armistice Day but not, he goes on, a day of remembrance but rather one when ‘prisoners would be released and reunited with their families and the politics, trials and errors of the war would be effaced for ever more’ (at 145). Recalling the Treaty of Munster 300 years before, he suggests that this be called a ‘Day of Oblivion’.

Re-​precedenting But oblivion is not always the better response. In post-​Cold War Germany, a new style of Holocaust commemoration began to emerge. James Young called its exemplars: ‘anti-​monuments’.35 There were many instances of this practice but a common feature of the anti-​monument was a material absence or radical fragility intended to restate historical memory as ruptural, tentative, suspect, or, at least, provisional. So, some monuments simply were not ‘there’. Others were designed to slowly disappear. Others refused orthodox memory or solidity or inscription by permitting and encouraging plebeian engagement with the anti-​ monument (eg graffiti). Often, what was being marked, of course, was the absence of something (Jewish children in Munster), and the marking of this absence itself could only be achieved through some sort of gap or slow, physical, recession. This chapter has tried to come to terms with historical absence and remembrance in the field of international criminal law by sketching the outlines of an anti-​history, maybe an anti-​monumental history.36 International war crimes trials can be thought of here as international criminal law’s official or semi-​official monuments. The absence of trial might suggest, for lawyers especially, a past without a history; a history lacking a permanent juridical marker might suggest a past hardly worth remembering. But, perhaps the act of not prosecuting or not remembering needs to be understood, too, as a form of international criminal law. Monuments, as we know, do not simply fail to remember: they actively ‘un-​remember’ that which is not commemorated. So, just as monuments un-​remember acts of history, trials sometimes erase those ‘crimes’ not juridified. As with this essay itself, then, the contemporary history of German anti-​ monuments might get us thinking about how to think about absence and memory while resisting the call for more and more trials. Rather like the UN forces at Pusan during the Korean War, international criminal lawyers have become adept at defending a tinier and tinier beachhead of justifications for their project of criminalizing atrocity. The standard rationales for sending people to jail seem somehow inadequate or puny or not fit for purpose when translated from reasonably functional domestic carceral systems to the world

35 James E Young, ‘Memory and Counter-​Memory’ 9 Harvard Design Magazine, http://​www. harvarddesignmagazine.org/​issues/​9/​memory-​and-​counter-​memory. 36  On (a different) monumental history see Friedrich Nietzsche, The Advantage and Disadvantage of History for Life (1874, Hackett 1980).

25

Re-precedenting

25

of international crimes.37 So, lawyers have sought out alternative justifications or rearranged the existing ones.38 We have had the recuperation of expressivist justifications for International Criminal Law or didactic jurisprudences or arguments that war crimes convictions either really do not deter or if they don’t deter they at least remove malefactors from the political system.39 Dissatisfaction with carceralism itself has resulted in a focus on other mechanisms for delivering justice or providing redress. This goes back to the attention given to reparations in the human rights system and the focus on victims and victim redress in the field of international criminal law itself.40 Meanwhile in the sub-​discipline of transitional justice there is a, more or less, ideological commitment to the pursuit of consolation through non-​punitive mechanisms within the broader context of establishing decent, post-​ traumatic societies.41 This emphasis brings in its train a set of problems, inevitably, but it also opens up space to think about succour in a more expansive, perhaps, better way.42 The problems are well documented. There are difficulties of proportion. Are forms of reparation equal to the task? Is (monetary) compensation tasteless, or depoliticizing or inadequate?43 Might it not simply divide communities into those victimized by kinetic violence and those harmed by structural wrongs? The danger with reparation, indeed victimicity itself, is that it might create a class of people who are victims but nothing else.44 Then there is the difficulty of scale: so many victims, so little in the trust fund. In 2008, the Victims Trust Fund had, in its trust fund for all victims of crimes ‘within the jurisdiction of the Court’, about half the money recently paid for the house two doors down from my apartment in London.

37  For more on this:  see Immi Tallgren’s influential ‘The Sense and Sensibility of International Criminal Law’ (2002) 13(3) European Journal of International Law 561–​95. I am excluding the United States (where a million African-​American men have been imprisoned) from this group. 38 Mirjan R. Damarska, ‘What is the Point of International Criminal Justice?’ (2008) Faculty Scholarship Series, paper 1573, http://​digitalcommons.law.yale.edu/​cgi/​viewcontent. cgi?article=2599&context=fss_​papers. 39  On expressivism see Mark Drumbl, Atrocity, Punishment and International Law (Cambridge University Press 2007); on didactic jurisprudence see Lawrence Douglas, The Memory of Judgement: Making Law and History in the Trials of the Holocaust (Yale University Press 2005); on removing criminals from the political process see Payam Akhavan, ‘Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?’ (2001) 95(1) American Journal of International Law 7. 40  See UN General Assembly, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law:  resolution /​adopted by the General Assembly, 21 March 2006, A/​RES/​60/​147; Articles 15(3), 53, and 75 of the UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998. See Carla Ferstman, ‘The Reparations Regime of the International Court of Justice’ (2002) 15(3) Leiden Journal of International Law 667–​86. On restitution see Article 23, Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda (1995). 41  Ruti Teitel, Transitional Justice (Oxford University Press 2000). 42  On ‘succour’ see Mark Drumbl, ‘Succour’ in Gerry Simpson, The Passions of International Law (forthcoming 2020). 43  See Alma Begicevic, Money as Justice (Unpublished Dissertation, Melbourne University 2018). 44  See Gerry Simpson, ‘The Sentimental Life of International Law’ (2015) 3(1) London Review of International Law 12.

26

26

Unprecedents

Finally, though hardly exhaustively, there is the problem of hitching compensation to international criminal law. Is reparation then dependent on some prior finding of individual responsibility: life chances determined by the vicissitudes of someone else’s criminal responsibility?45 One response to all of this—​and this links to the possibilities inherent in the move to diversifying the justifications for international criminal law—​is to incorporate the symbolic or didactic responses to atrocity into the heart of the discipline. The beachhead is small (war crimes trials fail to deter, punish, or rehabilitate but they can be defended by reference to their capacity to symbolize loss or register in important ways the pain of others) but on the other hand it could be expanded (by including within the remit of international criminal justice, other acts that do perform precisely these tasks). Linda Keller and Fred Megret have issued pleas to think about shrines or memorials or bridges as forms of reparative justice, or acts of juridical remembrance.46 Megret has pointed to sites of conscience as ways to preserve memory and offer solace.47 Monuments in particular, for him, can ‘provide places of mourning, remembrance and contemplation for victims and their relatives’ (at 24). As well as this, they can help attribute responsibility, provide a sense of acknowledgement of suffering, and collectivize victimhood. As Megret points out in his essay, the idea of building monuments has taken root in international institutions and in the decisions of courts themselves (in particular the Inter-​American Court of Human Rights).48 And sometimes these court decisions are very explicit about how the monument should be constructed, where it should be positioned, who should be consulted in its design, and whether and what accompanying text should be included. Recently I have been writing about the trial, execution, and memorialization of the English nurse, Edith Cavell.49 The Cavell case seems to represent, for me at least, a kind of origin for international criminal law: a precedent but also an opportunity for some re-​precedenting. A few weeks after Edith Cavell’s execution, an Edith Cavell War Memorial Committee was formed.50 It was composed of the usual aristocratic worthies,

45  For a more comprehensive engagement with the problems of reparation see Frederic Megret, ‘Of Shrines, Memorials and Museums: Using the International Criminal Court’s Victim Reparation and Assistance Regime to Promote Transitional Justice’ (May 2009) SSRN  12–​18. 46  Ibid.; Linda Keller, ‘Seeking Justice at the International Criminal Court: Victims’ Reparations’ (2006) 29 Thomas Jefferson Law Review 189, at 210–​12. 47  See, too, Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence (Beacon Press 1998). 48  See, eg, Case of the Moiwana Community v. Suriname, Series C No 124, Inter-​American Court of Human Rights (IACrtHR), 15 June 2005; Case of Myrna Mack Chang v Guatemala, Series C No 101, IACrtHR, 25 November 2003; Soria Espinoza v Chile, Case 11.725, IACrtHR, Report No 19/​03, OEA/​Ser.L/​V/​II.118, doc 5 rev 2 (2003); Case of Barrios Altos v Peru, Chumbipuma Aguirre and ors v Peru, Interpretation of the judgment of the merits, IACHR Series C no 83, [2001] IACHR 13, IHRL 1466 (IACHR 2001), 3 September 2001, IACtHR. 49 Gerry Simpson, ‘Human Rights with a Vengeance:  One Hundred Years of Retributive Humanitarianism’ (2016) 33 Australian Yearbook of International Law  1–​14. 50  This is elaborated on in a forthcoming essay of mine: Gerry Simpson, ‘OS Grid NM 68226 84912/​TQ 30052 80597’ in Jessie Hohmann and Daniel Joyce (eds), International Law’s Objects (Oxford University Press 2018). On the pervasiveness and working methods of the Committees in

27

Re-precedenting

27

including Viscount Burnham, the owner of the Daily Telegraph. The Committee wrote to Cavell’s family asking them how they would like to see Cavell commemorated.51 The (Nietzschean) reply duly arrived: ‘no monuments’. The family wanted the money used to build a nursing home for retired nurses instead.52 One response to monumentalism (trial, stone, conviction, hanging) is to move towards a form of non-​punitive restitution (a nursing home, reparations, money). Another is to engage in anti-​monumentalism (the critique of international criminal law, the rehabilitation of historical antecedents for this critique, an interrogation of monumental histories recruited to bolster imperial refurbishments, the anti-​monument). In the latter register, we have the fourth plinth in Trafalgar Square, where modern artists have, in a series of irreverent sculptural gestures, consciously worked against the grain of state solemnity conveyed by the lions standing on the other plinths (and against the phallic monumentalism of Wellington’s statue at its centre), or the horizontality of Maya Lin’s anti-​figurative Vietnam War Memorial in Washington DC. Meanwhile, Germany’s schizophrenic relationship to its past has been restated in an equally ruptured series of national monuments—​or ‘countermonuments’.53 One of the many examples of these German anti-​memorials is the disappearing black pillar designed by Jochen and Esther Gerz.54 Another model is Horst Hoheisel’s suggestion that the Holocaust be remembered through the destruction of the Brandenburg Gate and its replacement with the remaining dust and some glass plates.55 Anti-​ monumentalism adopts many different positions, of course, but in its essentials it incorporates a suspicion of official memorialization (noting an inverse relation between public commemoration and private reflection) and scepticism about the

designing such memorials at the time, see Jay Winter, Sites of Memory, Sites of Mourning: The Great War in European Cultural History (Cambridge University Press 1995) 86. 51  For a discussion of the way in which monuments might help injured and hurt communities, see Vasuki Nesiah, ‘Overcoming Tensions between Family and Judicial Procedures’ (2002) 84 International Review of the Red Cross 823, at 841. 52  According to Nietzsche, monumental history has a motto: ‘let the dead bury the living’. And so he said: ‘away with the monuments!’. See Veronica Tello, Counter-​Memorial Aesthetics (Bloomsbury 2016). In a non-​Nietzschean frame, international law has its own law of monuments: the international law of cultural property. The earliest instances were The Athens Charter (1931) and The Venice Charter (1964):  the latter was inspired by another planned destruction, that of the Nubia Temples during the building of the Aswan Dam in 1959. This time development not fundamentalism was the culprit: François Hartog, Regimes of Historicity: Presentism and Experiences of Time (Columbia University Press 2015) 183. Meanwhile, the destruction of the Buddhist Temples and the partial destruction of Palmyra can be re-​read not as wanton acts of destruction but very deliberate political-​religious acts of self-​assertion we might place in a lengthy tradition of similar acts of ‘terrorism’ from Moses and the destruction of the Golden Calf to the disfigurement of ninety-​three carved relief sculptures of the Virgin Mary in Ely Cathedral during the reformation. 53 As Neil MacGregor’s Germany:  Memories of a Nation (Penguin 2014) states in its first sentence: ‘Monuments in Germany are different from monuments in other countries’ ix. I would like to thank Helmut Aust for alerting me to this. 54 James E Young, ‘Memory and Counter-​Memory’ 9 Harvard Design Magazine, http://​www. harvarddesignmagazine.org/​issues/​9/​memory-​and-​counter-​memory. 55 Ibid.

28

28

Unprecedents

monument’s claim to authority (national memory or patriotic obligation). As James Young has pointed out, these tendencies took root in the period after the Great War when monumental statuary came to be regarded as a betrayal of the experience of slaughter in the trenches.56 The best examples—​though monumental in their own austere and blank manner—​are the two famous Luytens monuments to the fallen at Thiepval and in Whitehall where the Cenotaph almost accidentally inaugurates this tradition.57 Cavell’s monument was constructed precisely in this period but it operates both as patriotic and cosmopolitan self-​assertion, and modernist doubt, and this combination appears on its face and in the story of its construction.58 We can imagine a history of reckoning that takes its cue from this sort of thing. A re-​precedenting that uncovers the hidden history of war crimes and war crimes trials. A history of trials that slowly disappear from view or a history of trials that never occurred.59 Or a history of international criminal law that chooses to emphasize transcript over judgment (the Milosevic Trial as the presence of testimony not the absence of decision), or absence over presence (why remove Okawa from Court room in 1946?) or incarceration over trial (Spandau as a sublimated history of the Nuremberg Trials). Or a history of international criminal law that is not international, criminal, or law.60 To borrow a term of Charles Peguy’s, memorials are ‘inscriptive history’. Peguy contrasted memory (moving horizontally) with history (vertically imposed by experts or monument builders).61 And so, last April, I stepped out of the side entrance of the National Portrait Gallery in London, crossed a busy intersection leading up to Soho, and found myself, on the North-​East Corner of Trafalgar Square, in a tiny square opposite St Martin’s Church. In the centre of the square: a monument. It is made out of Cornish Granite, designed by Sir George Frampton. Edith Cavell stands in white marble above the monument with a single word engraved over her head: HUMANITY. The words of her final letter sent on the eve of her death: ‘I realise that patriotism is not enough’ were omitted from the monument.62 The words were added later in smaller script, at a time when patriotic feelings had waned a little. 56 Ibid. 57  For a discussion and celebration of Luytens though with no mention of the Cavell monument see Jay Winter, Sites of Memory, Sites of Mourning: The Great War in European Cultural History (Cambridge University Press 1995) 102–​8. 58  A longer essay—​one to be included in my forthcoming book, The Sentimental Life of International Law—​will play this combination of faith and doubt off against the relationship between extra-​curricular violence and legalized retribution that is a defining characteristic of international law. 59  George Steiner, The Portage of AH to St Christobal (University of Chicago Press, new edn, 1999); W. Schabas, The Trial of the Kaiser (Oxford University Press 2019, forthcoming); David King, The Trial of Adolf Hitler: The Beer Hall Putsch and the Rise of Nazi Germany (W. W. Norton & Company (2017). 60  Truth and Reconciliation Commissions are an obvious example of this but the conditions of possibility for these events is usually the impossibility of some other mode of responsibility. So, in the South African case, the emblematic moment might be the unsuccessful application from an unnamed Indian woman to receive an amnesty for her apathy. See Jacqueline Rose, On Not Being Able to Sleep (Verso 2003) 216–​17. 61 Hartog, Regimes of Historicity (n 52) 32, 130. 62  Diana Souhami, Edith Cavell (Quercus 2010) 409–​19.

29

Re-precedenting

29

In Virginia Woolf ’s The Years, Eleanor and Peggy pass through Trafalgar Square. They see the Edith Cavell monument. They glance at the figure of a woman in a nurse’s uniform holding out her hand. Eleanor was shocked for a moment . . . ‘The only fine thing that was said in the war’, she said, aloud, reading the words cut on the pedestal.63

This chapter has concerned itself with the relationship between precedents (the lawful) and the unprecedented (the sublime) and the production of bathos in the exchange between the two; with three acts of unprecedenting in the field of international criminal law and, now; with the possibility that some form of re-​ precedenting could be achieved through (anti-​)monumentalism. Could monuments and, especially, the disappearing monuments of the German post-​war style, act as both a form of remembrance and also as a prompt for thinking about what goes missing when we remember in trial or in stone?

63  Virginia Woolf, The Years (Harcourt, Brace & Co 1937) 336; Souhami (n 62) 420.

30

3 Founding Moments and Founding Fathers Shaping Publics through the Sentimentalization of History Narratives Kamari Maxine Clarke*

Scholarly approaches to the study of historical constructions of international law have a recent history. A range of approaches have explored the role of Eurocentric approaches and different forms of exclusion in the construction of international law, as well as the politics of micro-​history set alongside macro-​historical work. Other approaches detail the role of history in producing particular ways of seeing contemporary genealogies. One critical turn in the examination of history-​making has involved the production of historical narratives in order to understand what the mapping of genealogies of international law does for publics engaged in the production of those narratives—​especially in relation to public engagement. This chapter explores the work of emotional affects in shaping how emotional expressions of the past become entrenched within institutions like the International Criminal Court (ICC) and other popular public narratives about justice. It explores how political figures and legal technocrats engaged in public performances of justice tap into prevailing emotional regimes and deploy particular sentiments that become institutionalized. I begin here with two brief examples to illustrate this process, and then delve more deeply to analyse the different contours of affect that both structure fields of expression and are conditioned by history and individual affective responses. Taken together they illustrate how emotional sentiments are transmitted through the production of feeling regimes, and through affective transference their meanings travel and take root in various social fields, such as international justice. By mapping how the emotional affects are transferred within constituent publics—​from person to person, leader to constituency—​the chapter explores how they are deployed to make new historical lineages feasible. And, following Sarah Ahmed,1 how do emotions align subjects with each other and against others? What we see is that an important *  Thank you to Duke University Press for the permission to reproduce some of the research data from Kamari Maxine Clarke, Affective Justice (Duke University Press 2019) c­ hapter 2. 1  Sara Ahmed, The Cultural Politics of Emotion (Routledge, 2nd edn, 2004) 117. Founding Moments and Founding Fathers: Shaping Publics through the Sentimentalization of History Narratives. Kamari Maxine Clarke. © Kamari Maxine Clarke, 2019. Published 2019 by Oxford University Press.

31

Shaping Publics: Sentimentalization of History

31

part of the historical telling of international law and justice narratives involves the production of feelings of alliance and compassion which are generated through political speeches. In 1952 Jomo Kenyatta, the father of independent Kenya and of Uhuru Kenyatta, was arrested by the British colonial army following a state of emergency declared by the British administrators of colonial Kenya. Kenyatta had been indicted the year before, together with five others known as the Kapenguria Six—​Achieng’ Oneko, Bildad Kaggia, Fred Kubai, Kung’u Karumba, and Paul Ngei.2 By April 1953 all six were incarcerated for their membership in and organization of the Mau Mau freedom fighters. Kenyatta denied the accusations but was convicted of what many believe were trumped up charges. He served six years as a political prisoner, until 1960 when the demands for his release grew and native Kenyans gathered daily in the town square to protest the injustice. This mobilization succeeded, and Kenyatta was released. As the story goes, once released Kenyatta led his people in petitioning for Kenya’s independence from the British. When the first Kenyan elections were finally held in May 1963, Jomo Kenyatta was elected as the prime minister of the Kenyan African National Union (KANU) and it was in that context that he and his advisors negotiated the terms for Kenyan independence on 12 December 1963. Approximately fifty years later, one of Jomo Kenyatta’s sons, Uhuru Kenyatta, became the president of the Republic of Kenya, and with his deputy-​presidential partner, William Ruto, established their landmark consolidation of two previously antagonistic political groups aligned along competing ethnic cleavages. This consolidation is related to the 2012 indictment of Uhuru Kenyatta and William Ruto by the ICC, which of course did not prevent them from winning the highest seats in government. Their election campaign tapped into various emotional sensibilities related to anti-​colonial struggle and postcolonial Pan-​Africanism in order to mobilize the sympathies of various Kenyans. They did so by presenting the ICC’s indictment of Uhuru Kenyatta as a historical continuity of Jomo Kenyatta’s political struggle for independence against imperial rule. Kenyatta’s popularly hailed 2013 Heroes’ Day speech provides an example of postcolonial emotional regimes that celebrate the freedom-​fighter discourse deployed to cultivate affective sympathies for Pan-​African anti-​colonial struggles. On 20 October 2013, Uhuru Kenyatta presided over his first Heroes’ Day (known as mashujaa day in Swahili), a national public holiday to collectively honour all those 2  The Kapenguria Six, a group of political activists in Kenya, comprised Jomo Kenyatta, Achieng’ Oneko, Bildad Kaggia, Fred Kubai, Kung’u Karumba, and Paul Ngei; all members of the Mau Mau society. In 1953 they were arrested and convicted of conspiracy against the colonial government and of pressuring locals into pledging alliance to the Mau Mau. They were later released, as the elections for an independent government took place, in which Kenyatta won majority vote. Both the colonial government and the Mau Mau activists competed to gain people’s support through relentless propaganda. See ‘The Case that Immortalised Kenya’s “Kapenguria Six” ’ The East African 1 July 2017 https://​www. theeastafrican.co.ke/​magazine/​Case-​that-​immortalised-​Kenya-​Kapenguria-​Six-​/​434746-​3995106-​ s8sxn5z/​index.html; and for more on the propaganda war, see Osborne, ‘ “The Rooting out of Mau Mau from the Minds of the Kikuyu is a Formidable Task”: Propaganda and the Mau Mau War’ (March 2015) 56(1) The Journal of African History 77–​97. doi: 10.1017/​S002185371400067X.

32

32

Shaping Publics: Sentimentalization of History

who contributed to the struggle for Kenya’s independence.3 That day Kenyatta’s speech began with a characteristic unifying call to the ethnically divided nation and immediately highlighted the importance of celebrating the past. Upon establishing a sense of shared political community that has long struggled for independence from Europe, he went on to reinforce the after effects of colonialism and its impact on social and economic inequality. In an attempt to celebrate their independence journey, he highlighted the material and psychological consequences of the colonial project and its impact on their Kenyan forefathers: Fellow Kenyans, we are here to commemorate the sacrifice and heroism of many Kenyans whose vision and conviction won us freedom and sovereignty. Colonialism had stripped all Kenyans of their fundamental rights. They had no land, and were considered inferior in their own home. There was neither dignity nor freedom for Kenyans then. Our forefathers waged a struggle of conviction and principle, supported with no resources except the burning fire of humiliation and the indefeasible yearning for independence and respect. They were brave and noble. Many took up armed struggle in the forests, as others formed and led movements for the civil agitation for independence. The colonial reaction was repressive and brutal. Heroes were killed and imprisoned, while the rest were stigmatized and hunted down like animals. The cost of the struggle was painful, because the settlers did not consider Africans equal human beings worthy of rights.4

Kenyatta’s narrative about the humiliation of Africans at the hands of colonial administrators and settlers, and the subsequent freedom struggles that ultimately led to Kenyan independence, set a particular emotional climate that formed the backdrop for his audience. He went on to describe how Africans suffered at the hands of colonialists and emerged victorious in their fight against those forces: This day marks the official beginning of the worst phase of colonialism, and the most harrowing period of our struggle for independence. The brutality our independence heroes underwent from twentieth October 1952 until the attainment of self-​government ten years later defies imagination. It is the reason that we have reverently emblazoned our national flag with the red of their sacred blood. That is why our constitution states that, we the People honor those who heroically struggled to bring freedom and justice to our land. In history, Mashujaa Day is a day written in blood by the hand of our heroes.

After discussing the ‘brutality’ that their ‘independence heroes’ endured, Kenyatta went on to liken his judicial indictment by the ICC to his father’s indictment by the British colonial administration in Kenya, thereby connecting the brutality of the colonial past to contemporary international law. The audience—​seasoned and acutely aware of Africa’s history of colonial domination—​was invited to share sentiments of horror about colonial injustice and make a symbolic connection to the other, current injustice: 3  Previously known as Kenyatta Day, celebrated to commemorate the detention of the Kapenguria Six. However, following the establishment of the new Kenyan Constitution in August 2010, Kenyatta Day was renamed Mashujaa Day. 4  See ‘Mashujaa day speech by Uhuru Kenyatta’, Capital FM, 20 December 2013.

3

Shaping Publics: Sentimentalization of History

33

Our forefathers rejected colonialism and imperial domination in their time. We must honor their legacy, and stay true to our heritage, by rejecting all forms of domination and manipulation in our time. Let us confront without flinching those external forces seeking to thwart our collective aspirations. They may be powerful and rich, but so were the colonialists. They may disrespect and even hate us; we have defeated their ilk before.

When those who attended the event that day and others who watched it on television described their interpretation of the opening of the speech, time and time again they told us that Kenyatta’s references to external (read colonial) domination reflect colonial defiance at work. Their reaction reflects the way that popular feelings about Kenyan postcolonial futures are bound up in a particular form of rejection against colonial degradation. What we see is that these sentiments are made real as a result of particular a priori events that shape what the present and future become. Through the use of partial invocations, Kenyatta succeeds in getting his audience to connect contemporary justice to selective histories of colonial sham trials. The logic is that the political histories of subordination that created Kenya as a colony were the same histories that led Uhuru Kenyatta to a subordinate place in the realm of international justice and politics. These historical logics highlighted the way that morally coherent causalities can be mobilized to produce moral sentiments that celebrate the fetishized victim-​survivor. And through the deployment of certain linguistic tools, political speech acts and the sentiments that they conjure articulate partial concepts while still communicating full ideas. In other words, the existence of the violation is so commonly understood that it is unnecessary to spell out. Rather, the listener is made to call on his or her own sense of inequality in order to fill the gaps. The forms of sentimentality involved in such postcolonial justice discourses represent what Russian philosopher Michael Bakhtin calls ‘dialogic’ to refer to the ways that contemporary imaginaries are continually informed by past conceptions.5 This approach to the social retelling of relevant events in daily life can help us make sense of how emotive expressions about the colonial past, as temporally shaped manifestations of social reality, guide how feelings of injustice are understood and attributed through narrative strategies. In this particular example, affective regimes shape emotional climates through passionate utterances and narratives about stigmatization. As social constructions, these collective feelings reflect individual perceptions but are actually reflections of group transference. As a product of collective emotions generated through social interactions,6 emotional climates reflect social norms that establish ‘how people feel or ought to feel’ and comprise the affective terrain within which public emotions operate.7 5 M. M. Bakhtin. The Dialogic Imagination (ed. Michael Holquist, trans. Caryl Emerson and Michael Holquist, University of Texas Press 1981), especially ‘Forms of Time and the Chronotope in the Novel: Notes toward a “Historical Poetics” ’ 6  J. De Rivera and D. Páez, ‘Emotional Climate, Human Security, and Cultures of Peace’ (2007) 63 Journal of Social Issues 233–​53. doi: 10.1111/​j.1540-​4560.2007.00506.x. 7  Jaan Valsiner, ‘Process Structure of Semiotic Mediation in Human Development’ (2001) 44(2) Human Development. doi: 10.1159/​000057048; see also Immi Tallgren, ‘The Durkheimian Spell of International Criminal Law?’ (2013) 71 Revue interdisciplinaire d’études juridiques (Droit en Contexte).

34

34

Shaping Publics: Sentimentalization of History

The study of emotion presumes that such feelings are grounded in particular socio-​moral orders expressed through responses that are deemed ordinary. For example, where stigma makes possible the terms for regulating what is acceptable in relation to what is abhorrent, narratives of empathy produce the terms for shared collective sentiments. Kenyatta’s reference to the ordinary aspirations of Kenyan dreams of freedom from ‘imperial domination’ was juxtaposed with his suggestion that there were ‘external forces seeking to thwart [their] collective aspirations’. The political reality of colonial trials (often seen popularly as sham trials) and their parallel with Uhuru Kenyatta’s indictment by the ICC was conjured to produce a key moment of linkage to this colonial past. As he affirmed, ‘They may be powerful and rich, but so were the colonialists’. In this way, Kenyatta attributed the ICC with the same colonial armature of subjugation.8 This did not involve an explicit reference to the ICC. There was no need to name it. Rather, the point was sharpened with the profound declaration, ‘We have defeated their ilk before’, referring to judicial external bodies such as the ICC in which the colonial is tied to the international (read: European). Kenyatta called out the ICC as an ‘ilk’ of domination and symbolically equated the known fact that, to date, the ICC has only indicted Africans with African judicial struggles against imperial domination. His conclusion: Kenya’s Mau Mau revolutionaries used constitutionalism to defeat their oppressors, and so will Kenya’s contemporary democratic vanguard. By comparing his own ICC indictment to the arrest and political conviction of his father some fifty years earlier, Uhuru Kenyatta attempted to make personal meaning out of historical and contemporary realities through a cultural template of subordination and an emotional process known in psychoanalysis as ‘transference’.9 Transference represents the common ascription of emotion from one person to another, or one person to an object. For Freud, it was connected to the process of projecting unresolved issues in one’s primary kinship relationships onto others. I use transference here to link intersubjective cultural fields to show how it is used in meta-​contexts, such as crowds and large audiences. Affective transference, as an intersubjective process fuelled by emotional regimes, is not only employed by those protesting the presence of the ICC in Africa. We also see it in the rhetorical practices of those engaged in the rule of law movement, such as the members of the ICC’s Office of the Prosecutor (OTP). Key to this analysis is the understanding that once those narratives are articulated within their own domains of legitimacy, they have the power to mobilize sentiments that are shared by others and create new alignments in that process. In the ICC’s early days, the court gained popular traction as a symbol of protection for victims and as a means for ‘ending impunity’. The domain of state authority, 8  Interestingly, despite Kenyatta’s attempt to highlight the wealth and power of the West, Kenyatta’s own family’s wealth and power is ironic as it is seen by the ICC’s Office of the Prosecutor (OTP) as an impediment to its investigations, as Kenyatta was seen as using his financial and political resources to influence witnesses and the political and legal process. 9  See Sigmund Freud, The Ego and the Id (ed. J. Strachey, trans. J. Riviere, W.W. Norton 1960; original work published 1923).

35

Shaping Publics: Sentimentalization of History

35

which had (since the Peace of Westphalia in 1648) long dominated approaches to sovereignty, began to topple. Theories of a state’s responsibility to its citizens transformed with the emergence of a new moral order, which took shape with the emergence of the ‘Responsibility to Protect’, or R2P, doctrine, as I have written about elsewhere.10 Members of the OTP, such as Shamiso Mbizvo, remind us that the court was set up on behalf of the ‘international community to intervene when the nation state fails’. As she suggested in a keynote speech at a conference on the ICC and Africa in The Hague in May 2014: The final text of the Rome Statute of the International Criminal Court is the culmination of almost a hundred years of hard work, unyielding determination, and stubborn hope on the part of people all over the world, from many walks of life, who have all shared the vision of an independent, permanent International Criminal Court. The ICC exists to hear the voices of victims of the most atrocious crimes, when their cries fall on deaf ears. It is a Court that was set up to intervene on behalf of the most vulnerable, when their own governments fail to hold their abusers accountable.11

Mbizvo’s discussion of the existence of the ICC as a culmination of ‘almost a hundred years of hard work’ in order to establish a mechanism to intervene on behalf of the ‘most vulnerable’ suggests a historical continuity over a longer period of time than the mid-​1990s, when international law was instrumentalized morally and politically. Like Kenyatta’s symbolic linkages, she described the contemporary ICC’s formation metaphorically as a one-​hundred-​year Road to Rome culminating in the formation of the Rome Statute for the ICC. This is a sentimental narrative construction that tells a celebratory story about a long and sustained road to justice that often involves efforts to end the impunity of a perpetrator and to rescue a victim through international legality (see also Christopher Gevers in this volume). But when the ICC is examined dialogically it becomes clear that even though the formation of the Rome Statute for the ICC was shaped by a range of very limited attempts to hold postwar leaders and commanders responsible for war crimes, there was also an absence or suspension of justice mechanisms in various colonies in the Global South.12 This chapter reveals the gaps in the production of particular founding narratives and their imbrication in legal and historical formulations. We see how emotions are deployed through sentimental rejections of the Rome Statute narrative to 10  Kamari Maxine Clarke, Affective Justice (Duke University Press 2019). 11  Kamari Clarke, Abel Knottnerous, and Efjie de Volder (eds), Africa and the ICC: Perceptions of Justice (Cambridge University Press 2016). 12 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge University Press 2004); see also Christopher Gevers and Max du Du Plessis, ‘Another Stormy Year for the International Criminal Court and its Work in Africa’ (SSRN: 2011); Upendra Baxi, ‘What May the “Third World” Expect from International Law?’ (2006) 27(5) Third World Quarterly 713–​25; Makau W. Mutua, ‘The International Criminal Court in Africa: Challenges and Opportunities’ (2010) Buffalo Legal Studies Research Paper No. 2011 -​003. Obiora Chinedu Okafor, ‘Critical Third World Approaches to International Law (TWAIL)’ in International Community Law Review 371–​8 (Martinus Nijhoff Publishers, vol 10 2008); R. P. Anand, International Law and the Developing Countries: Confrontation or Cooperation (Banyan Publications 1986); Balakrishnan Rajagopal, International Law from Below: Developments, Social Movements and Third World Resistance (Cambridge University Press 2003).

36

36

Shaping Publics: Sentimentalization of History

replace it, through affective transference, with new originary narratives that are used to attribute different meanings of justice. Kenyatta’s linguistic strategies highlight the affective politics of social protest that are aestheticized through postcolonial imaginaries of injustice. Illustrating the effectiveness of the emotional architectures he built through his particular rhetorical practices, informants reported that these narratives were inspired by Africa’s colonial history and the subsequent objection that various Pan-​Africanists have to Western dominance. The embodiment of such imaginaries generates a response to domination by re-​articulating new histories that fold into the present. Like Kenyatta’s dialogism framed in relation to continuous indictments by foreign bodies, Shamiso Mbizvo’s articulation of the histories that led to the formation of ICC justice is an example of a related set of emotional regimes underway. In this case it serves another set of politics. In both examples, the retelling of their public histories invented links of significance to present morally provocative sentiments around which to mobilize action. In these cases, the sentimental invocations pointed to many things—​the perpetrator of violence to be held accountable, or the colonial perpetrators who were never held accountable, or the degradation and fortitude of those whose struggles for justice have been pivotal. All of the sentimental invocations stigmatized colonial injustices to preclude particular readings of contemporary violence without attention to the roots of inequality. Ultimately, what we see in these examples is the transmission of sentiments of saving and protecting, as well as expressions of African redemption from injustice, for they are key to the way that references to particular types of violence work in liberal democratic speechmaking. I show how sentimentally infused speech practices are critical to how affects are institutionalized and political publics shaped in international justice domains.

The Road to Rome Today, the popular contemporary story of the birth of the Rome Statute and its judicial legitimacy is based on a particular history of the ICC that sets the beginning of the Road to Rome in the early nineteenth century. That story, as told by various representatives of the ICC, often begins with the 1872 founding of the International Committee of the Red Cross (ICRC) in which a permanent court was proposed to respond to the crimes of the Franco-​Prussian War.13 And if those narrative origins are not emphasized, the attempt of the 1919 Treaty of Versailles to try German those seen as most criminally responsible during the First World War or key to the founding of the history of the court, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide is often cited. In this story, the First World War contributed to the launching of the first global effort to use international and domestic criminal jurisdiction to address international crimes. Following the war, the Allied and Associated Powers (ie Great Britain, France, 13  See Shamiso Mbizvo speech documentation cited here. Other forms of documentation on file with author.

37

The Road to Rome

37

Russia, and the United States) convened a Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties to inquire into culpable conduct by the Central Powers (ie Germany, Austria, Hungary, Bulgaria, and the Ottoman Empire). The Commission was charged with considering the feasibility of asserting criminal jurisdiction over particular individuals, ‘however highly placed’, accused of committing breaches.14 Objectors to this approach, led by a predominantly American delegation, refused on the grounds that by holding heads of state and other state actors liable for collective actions state sovereignty would be diminished.15 They also took issue with the reality that no precedent existed in law for such an approach.16 In 1919, the Commission presented to the Paris Peace conference its final report on which crimes should be prosecuted before an international ‘high tribunal’ composed of representatives of the Allied Powers, or before national tribunals.17 The United States advanced four fundamental objections to this approach, among them that to prosecute a head of state outside of his national jurisdiction would violate the basic precepts and privileges of sovereignty.18 From here, the potential liability for German and Ottoman defendants proceeded down separate paths. The Treaty of Versailles ended the war with Germany in 1919 and required it to accept full responsibility for causing the war, make territorial concessions, and pay reparations.19 It was Article 227 that proposed the establishment of an international tribunal composed of representatives from the United States, Great Britain, France, Italy, and Japan to try former German Emperor, Kaiser Wilhelm II.20 By the time the Versailles Treaty had entered into force, the Kaiser had fled to the Netherlands, which refused to extradite him for trial.21 Article 227 never came to fruition and the Allies never enforced any other penal provisions of the Treaty.22 In the end, only a few prosecutions took place in domestic courts in Germany, and those who were prosecuted received disproportionately low sentences or were acquitted.23 Following the First World War, a number of policy makers and lawyers, often described as constituting the international community, took action to build institutions to settle international disputes. The League of Nations announced a commitment to safeguard the peace of nations without resorting to war and in 1920, recommended the creation of a permanent international criminal court.24 The

14  Beth Van Schaack and Ronald Slye, ‘A Concise History of International Criminal Law: Chapter 1 of Understanding International Criminal Law’ (Legal Studies Research Paper Series Working Paper No. 07-​42, 2007) 21. 15 Ibid. 16 Ibid. 17 Ibid. 18  Ibid. 23. 19  William A. Schabas, An Introduction to the International Criminal Court (Cambridge University Press, 4th edn, 2011) 3. 20  Treaty of Peace between the Allied and Associated Powers and Germany (‘Treaty of Versailles’), (1919) TS 4, Art 227. 21 Schabas, An Introduction to the ICC (n 19). 22  Van Schaak and Slye, ‘A Concise History of International Criminal Law’ (n 14) 24. 23 Schabas, An Introduction to the ICC (n 19) 4. 24  Antonio Cassese, ‘From Nuremberg to Rome: International Military Tribunals to the International Criminal Court’ in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary, Vol 1 (Oxford University Press 2002) 3–​19 at 4–​5.

38

38

Shaping Publics: Sentimentalization of History

proposal was rejected as premature; instead, the Permanent Court of International Justice (PCIJ), the precursor to the International Court of Justice (ICJ), was established with civil jurisdiction over states.25 Following that narrative trajectory, the most critical period in the development of modern international criminal law (ICL) occurred in the period following the Second World War. Two international tribunals were established for adjudicating international crimes that took place during the war: the International Military Tribunal for the Trial of German Major War Criminals (the IMT or Nuremberg Tribunal) and the International Military Tribunal for the Far East (the IMTFE or Tokyo Tribunal). The Nuremberg Tribunal was established through the London Agreement of 8 August 1945, between the four victorious Allied Powers: France, the Soviet Union, the United Kingdom, and the United States.26 The Tribunal convened from 20 November 1945 to 1 October 1946, during which time it heard the cases of twenty-​ one Nazi defendants.27 The Tokyo Tribunal was, by contrast, established by a special proclamation issued by the Supreme Allied Commander of the Far East, United States General Douglas MacArthur, with the agreement of the Allied Powers.28 The Tokyo Tribunal convened from 3 May 1946 to 12 November 1948, and was heavily influenced by the United States, with the prosecutions led by a single American Chief of Counsel chosen by MacArthur (with Associate Counsel from the Allied Powers).29 In addition to these two tribunals, hundreds of trials occurred before military and civilian tribunals in various locales in the zones of occupation of the victorious powers.30 Van Shaack and Slye, among many other scholars of international law, argue that it is difficult to overstate the significance of the post-​Second World War period to the field of international criminal law. They insist, ‘These legal proceedings established many core principles of the field’.31 Indeed, the establishment of a mechanism in which high-​ranking state officials could be held individually criminally responsible for international crimes created a set of discourses that were profoundly powerful.32 Many show that the Nuremberg and Tokyo tribunals made explicit the commitment to holding various officials responsible for their orders to lower-​ranking officers to facilitate or directly perpetrate violence. The argument that is often made is that by rejecting the basis for both state sovereignty and discarding principles of immunity through a movement that insists on the irrelevance of official capacity, this post-​Second World War movement certainly produced a few examples where those culpable for mass crimes were held criminally accountable.33 However, as is well-​ documented in the literature, for every instance in which European sovereign heads 25 Ibid. 26 Schabas, An Introduction to the ICC (n 19) 5–​6. 27  Van Schaak and Slye, ‘A Concise History of International Criminal Law’(n 14) 30–​1. 28  Cassese, ‘From Nuremberg to Rome’ (n 24) 7. 29  Van Schaak and Slye, ‘A Concise History of International Criminal Law’ (n 14) 30 and 32. 30  Ibid. 32; Schabas, An Introduction to the ICC (n 19) 7. 31  James Thuo Gathii, ‘Introductory Remarks for “The Past and Future of African International Law Scholarship” ’ (2013) 107 Proceedings of the ASIL Annual Meeting  187–​9. 32 Vasuki Nesiah, ‘Local Ownership of Global Governance’ (September 2016)14(4) Journal of International Criminal Justice. 33  Van Schaack and Slye, ‘A Concise History of International Criminal Law’ (n 14) 34.

39

The Road to Rome

39

of state were held responsible for violent mass crimes in Europe and South America, there were a plethora of other situations where this was not the case. While the Nuremberg example provides a mechanism for understanding particular instances of criminal liability of commanders, British or Dutch or Spanish imperial forces, for example, engaged in gross violations with impunity.34 Significant populations involved in self-​determination/​independence struggles in the Caribbean, Latin America, Africa, and Indigenous and First Nations peoples were arrested, indicted, and subjected to violence. Yet, if we presume that the ‘international’ refers to a wide range of countries and populations, then the absence of the criminal prosecution of former colonial leaders in places like England or even France during twentieth-​ century independence struggles call into question the often-​told narratives about the trend towards criminal prosecutions. The recent history that is told by the OTP and many others within the field of international criminal justice as the ‘Road to Rome’ is one in which the immediate post-​Second World War period witnessed the United Nations (UN) emerging from its predecessor, the League of Nations. This was followed by the emergence of an international human rights regime that led to the drafting of the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The codification of ICL continued with the development of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the four Geneva Conventions of 1949.35 And in 1947, the General Assembly requested that the International Law Commission (ILC) study the possibility of establishing an international judicial body for crimes such as genocide, war crimes, and crimes against humanity.36 As the story is told, in the early 1950s the ICL was invited to assess the interest, thus possibilities, for establishing a permanent international judicial institution. It was to codify the Nuremberg and Tokyo principles into a Draft Code of Offenses Against the Peace and Security of Mankind that would provide the subject matter jurisdiction for the proposed tribunal.37 But it did this with numerous stops and starts, dealing with pressure to abandon it during the Cold War and over various ideological and political disagreements of the type of crimes that would be under the subject matter jurisdiction of such an institution. In the early 1990s a range of parallel developments unfolded. At the prompting of Trinidad and Tobago and with an emphasis on transnational crimes like drug trafficking and money laundering,38 the General Assembly once again prompted the ILC to draft a statute for a permanent international criminal court. This took shape alongside an initiative by Trinidad and Tobago for there to be a concerted effort to address various transnational crimes such as drug trafficking and money

34  Ibid. 37. 35  Ibid. 38. 36 Schabas, Introduction to the ICC (n 19) 8–​9; Cassese, ’From Nuremberg to Rome’ (n 24) 9–​10. 37 Schabas, Introduction to the ICC (n 19) 9. 38  Van Schaack and Slye, ‘A Concise History of International Criminal Law’ (n 14); Cassese, ‘From Nuremberg to Rome’ (n 24) 8.

40

40

Shaping Publics: Sentimentalization of History

laundering.39Also during this period, Resolution 780 was adopted on 6 October 1992 by the United Nations Security Council (UNSC) to establish a Commission of Experts to document violations of international law.40 In response to the Commission’s recommendation, as well as calls from a wide spectrum of international actors, on 25 May 1993, the UNSC unanimously adopted Resolution 827 to create the International Tribunal for Yugoslavia (ICTY), an international tribunal to prosecute those responsible for crimes committed in the former Yugoslavia since 1991.41 The following year, the genocide in Rwanda led to the establishment of the ICTR.42 Additional ad hoc tribunals were later established (out of the UNSC) to respond to crimes committed in Sierra Leone, East Timor, Lebanon, and Cambodia. The ILC completed a draft statute in 1994 that formed the basis for consideration by the Ad Hoc Committee on the Establishment of an International Criminal Court and then a Preparatory Committee on the Establishment of an International Criminal Court (PrepCom).43 And while this popular trajectory was seen by many in the growing rule of law movement as a positive development, the ILC’s project and the subsequent General Assembly deliberations led to the consolidation of the UN’s ICL assemblages resulting in the formation of the ICC. On 17 July 1998, 120 of the world’s states came together to complete the negotiation for the adopted text for the Rome Statute for the eventual establishment of the ICC. By 2002 the Rome Statute came into force and was celebrated with a profoundly historical century-​old origin story. Yet even some of international criminal law’s juridical architects, such as Antonio Cassese and Cherif Bassouni, never accepted—​empirically, legally, or normatively—​the dominant Road to Rome narrative, because they understood that up until 1993 such an institution was not enough to destabilize the modern legal concept of sovereignty. The story that is often left out of the Road to Rome trajectory is the narrative that highlights the way that 39  Adam Jones, Genocide, War Crimes, and the West: History and Complicity (Zed Books 2004); Ben Kiernan and Robert Gellately, The Specter of Genocide: Mass Murder in Historical Perspective (Cambridge University Press 2003); Bertrand Taithe, The Killer Trail: A Colonial Scandal in the Heart of Africa. (Oxford University Press 2009); Clinton Fernandes, ‘Accomplice to Mass Atrocities: The International Community and Indonesia’s Invasion of East Timor’ (2015) 3(4) Politics and Governance (Cogitatio); Egla Martínez Salazar, Global Coloniality of Power in Guatemala:  Racism, Genocide, Citizenship (Lexington Books 2014); Andrew Woolford, Jeff Hinton, and Alexander Benvenuto (eds), Colonial Genocide in Indigenous North America (Duke University Press 2014); Tom Lawson, ‘Memorializing Colonial Genocide in Britain: The Case of Tasmania’ (2014) 16(4) Journal of Genocide Research 4; André Brett, ‘The Miserable Remnant of this Ill-​used People: Colonial Genocide and the Moriori of New Zealand’s Chatham Islands’ (2015) 17(2) Journal of Genocide Research; Michael Mandel, How America Gets Away with Murder: Illegal Wars, Collateral Damage and Crimes Against Humanity (Pluto Press 2004). 40  See presentation. ‘Prevention and Suppression of Transnational Organized Crime’ by Commodore Anthony S. Franklin, the Director of the Institute of Marine Affairs of Trinidad and Tobago. Available at: http://​www.un.org/​depts/​los/​consultative_​process/​documents/​9_​franklin_​presentation.pdf. 41 Ibid. 42  UN Doc. SC Res. 780, 6 October 1992. 43  See Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, G.A., 50th Sess., Supp. No. 22, A/​50/​22, 1995; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume I, (Proceedings of the Preparatory Committee During March, April and August 1996), G.A., 51st Sess., Supp. No. 22, A/​51/​22, 1996, at 193; Report of the Preparatory Committee on the Establishment of an International Criminal Court, Volume II, G.A., 51st Sess., Supp. No. 22, A/​51/​22, 1996.

41

The Road from Rwanda, Not Nuremberg

41

the moral responsibility to protect those victimized by violence led to the viability of the ad hoc tribunals and eventually the ICC. This is very different from the linear story above and illustrates the process of reattribution at work in this example and throughout this volume. In Nuremberg and Tokyo, the reality of defeat in war led to the setting of the conditions for prosecutorial justice. As Mahmood Mamdani has recently helped to clarify,44 the hidden prerequisites for trial, in all these cases, were (i) a war, that was (ii) won decisively by one side, and to which one might add (iii) the historical institution of ‘unconditional surrender’, which includes the concession of sovereign power.45 By contrast, in the African situations that the ICC has taken up, very different conditions led to the court’s reach. The contemporary protection and invocation of justice for victims were related to the inability of African states to use decolonization to move towards new frontiers that would disrupt spheres of inequality, ethnic patronage, and poverty that prevailed in the post-​1960 independence periods.

The Road from Rwanda, Not Nuremberg Violence in the former Yugoslavia and then Rwanda, Liberia, and Sierra Leone led to the formation of new judicial institutions that also contributed to a new set of discourses about the ICC. These further reinforced the affective contours of international law. From Kenya to South Africa, Namibia to Mozambique, Zimbabwe to Algeria, independence negotiations from the late 1950s to the mid-​1990s were brokered without attention to criminal prosecutions of former colonial powers. Even as various African leaders were strategically optimistic about the potential of using international justice in their newly independent states, they also knew that unless the roots of inequality were also addressed, violence would remain a mode for managing law’s failures. The postwar momentum to develop permanent international criminal law institutions resulted in the criminalization of certain forms of conduct, the establishment of particular types of jurisdiction, and the individualization of criminal responsibility in which particular member states and UN, as ‘stakeholders’ in criminal justice, became engaged in advocacy to use criminal justice to address mass atrocity violence. However, when various African advocates decried the timing of such forms of institutionalization, they often commiserated that when international criminal justice was needed to intervene in colonial and post-​1990s periods, there were no judicial institutions available to them. The absence of international institutions to intervene

44 The clearest location of Mahmood Mamdani’s argument that it was necessary to produce Nuremberg and the model it created for transitional justice is in his ‘The Logic of Nuremberg’ (2013) 35(21) London Review of Books  33–​4. 45  This point about the Nuremberg model is clarified more substantively in Mahmood Mamdani’s ‘Beyond Nuremberg:  The Historical Significance of the Post-​Apartheid Transition in South Africa’ (2015) 43(1) Politics & Society  61–​88.

42

42

Shaping Publics: Sentimentalization of History

in wide-​scale violence in places like South Africa, for example, was seen by many of those concerned with the structural inequality of justice as being reflective of the same architecture that produced the Rome Treaty. From 1948 to 1990, apartheid in South Africa existed as an international crime without an international criminal court to prosecute it. However, when, in 1966, the UN General Assembly classified it as a crime against humanity,46 the then, Organization of African Unity (OAU) attempted to lobby for the establishment of an international penal court in the 1970s to prosecute the crime.47 Initially, its stakeholders had hoped that they could establish a criminal chamber through the African Charter of Human Rights, but they abandoned this when the UN Security Council affirmed in 1984 that apartheid was a crime. This opened up the possibility of establishing in the late 1980s a UN international penal court in order to prosecute various apartheid crimes on the basis of universal jurisdiction. But the reality was that in order to pursue apartheid as a crime, national states had to enact legislation to prosecute individuals through universal jurisdiction.48 When the Rome Statute crimes were negotiated, apartheid offences were eventually dropped as a core crime. Instead, apartheid was collapsed into crimes against humanity and subject to a post-​2002 temporal jurisdiction. This meant that the period of brutal domination of South African or Kenyan natives was beyond the temporal reach of the court. Instead, the international rule of law movement took hold of post-​civil rights judicial agendas propelled by various agents of change in the United States, Europe, and Australia. And, as the story is often told, the late 1980s and early 1990s led to the establishment of new judicial institutions that deal with a range of crimes in which criminal responsibility was narrowly tailored to the ‘now’, namely the ‘present’, and the ‘future’ goals of ending impunity. The irony is that when African stakeholders needed prosecutorial justice against colonial domination, international law could not be mobilized to provide viable solutions because of the temporal framing. And although African state brokers participated to varying degrees during the Rome Treaty negotiations, and even as the law was deployed to establish African independence and membership in the newly changing world order, they were well aware that there were limits to its use as a tool for justice.49 State actors that were actively engaged in the ICC’s success, such as England, the Netherlands, Spain, Portugal, came to be seen by various African state actors as engaging in international law making both as an instrument of historical subjugation as well as a tool for social change. Kenya’s history and memory of native subjugation provides a vivid example of this relationship. It shows that even as African states signed on to the Rome Statute in response to the demands of new democratic forms of constitutionalism, for a range of leaders and their publics in the Global South 46  UN Doc.SC Res. 827, 25 May 1993. 47 Schabas, Introduction to the International Criminal Court (n 19) 12; Cassese, ‘From Nuremberg to Rome’ (n 24) 14. 48  See Ademola Abass, ‘Prosecuting International Crimes in Africa’(August 2013) 24(3) European Journal of International Law 937, citing UN Doc GA Res 2202 A (XXI), 16 December 1966. 49 International Convention on the Suppression and Punishment of the Crime of Apartheid, New York, 30 November 1973, in force 18 July 1976, 1015 UNTS 243. Art V.

43

The Road from Rwanda, Not Nuremberg

43

post-​Cold War democracy has an internal tension. Structural violence was written out of the ICC’s affective history and the narratives reflected that and African states were often pushed to ratify by institutions like the World Bank, the International Monetary Fund (IMF), the European Union (EU), and various non-​governmental organizations (NGOs) funded by northern governments or philanthropists.50 Instead, the ICC emerged as a mechanism for protecting other types of ‘victims’—​ of African postcolonial violence—​while the prosecution of Northern perpetrators, such as those states that were at war in Iraq and Afghanistan, were for some seen as unthinkable. This is because the violence in these contexts was either protected by particular state’s non-​submission to the jurisdiction of the Rome Statute, like the United States of America, or between 2002 and 2017 the crime of aggression was not yet operationalized and therefore not justiciable. This is because states that were parties to the Rome Statute but did not want to submit to the crime of aggression were able to register a reservation. The example is telling. At the time of entry into force of the Rome Statue in 2002, Article 5(1) included the jurisdiction of the court over four crimes: (a) the crime of genocide; (b) crimes against humanity; (c) war crimes; and (d) the crime of aggression. However, Article 5(2) stated that the court will only activate jurisdiction over the crime of aggression once a definition of the crime and the conditions for such jurisdiction are established.51 The Kampala Review Conference in 2010 fulfilled this mandate and over thirty state parties ratified the provisions for the amendment of the original text to include the agreed upon definition and conditions for jurisdiction.52 The Sixteenth session of the Assembly of States Parties in December 2017 decided on the activation of the jurisdiction of the court over the crime of aggression, establishing so in Resolution ICC-​ASP/​16/​Res.5 by consensus on 14 December 2017.53 However, the Assembly’s resolution explicitly called for it to ‘enter into force for those States Parties that have accepted the amendments one year after the deposit of their instruments of ratification or acceptance and that in the case of a State referral or propio motu investigation the Court shall not exercise its jurisdiction regarding a crime of aggression when committed by a national or on the territory of a State Party that has not ratified or accepted these amendments’.54 Many describe this ICC Resolution 50  See Abass, ‘Prosecuting International Crimes in Africa’ (n 48) 937, citing J. Dugard, ‘International Convention on the Suppression and Punishment of the Crime of Apartheid’ (Audiovisual Library of International Law, 2008). See also Art V of the Apartheid Convention. 51 Siba N. Grovogui. Beyond Eurocentricism and Anarchy:  Memories of International Order and Institutions (Palgrave Macmillan 2006). 52  Interview notes on file with author. See also Ernest Ochonma, ‘IMF, World Bank and African Economies’ 1 February 2001, available on the Global Policy website at: https://​www.globalpolicy.org/​ component/​content/​article/​209-​bwi-​wto/​43291.html; and Chris Huggins, ‘A Historical Perspective on the “Global Land Rush” ’ January 2011, available at: https://​www.academia.edu/​835652/​A_​historical_​perspective_​on_​the_​Global_​Land_​Rush. 53  See Art. 5 of the Rome Statute of the International Criminal Court. 54  The states that have so far ratified this jurisdiction are overwhelmingly countries in the developing world with a striking absence of all five UNSC permanent member states, ie China, France, Russian Federation, the United Kingdom, and the United States. See ‘Status of Ratification and Implementation of the Kampala Amendments on the Crime of Aggression’, Update No 28 (information as of 8 December 2017), available at: https://​crimeofaggression.info/​the-​role-​of-​states/​status-​of-​ratification-​ and-​implementation/​.

4

44

Shaping Publics: Sentimentalization of History

as reflecting a compromised position between the majority of the state parties on one side and a small group of Northern countries (Britain, France, Canada, Japan, and Norway). According to our documentation of the negotiations, initially these countries had been calling for further clarity on how the amendments in Kampala would be interpreted. As the interpretation of the terms for the crime of aggression became clearer, they advocated for an ‘opt-​out’ alternative in which they could still remain as parties to the Rome Statute but register a reservation for the crime of aggression.55 The result was the brokering of the crime of aggression with limited jurisdiction in which the crime would only apply to those who ratified the Kampala agreement (thirty-​five states at the time of this analysis),56 thus submitting to the subject-​matter jurisdiction under the crime of aggression. Following the December 2017 Assembly of States Party, the narratives that circulated amongst significant numbers of African state representatives was that, once again, Northern counties had found a way to create exceptions to the universal application of justice. During the 2018 African Union Summit that the author attended the following month that took place on the heels of the ICC’s Assembly of States Party meeting, various narrative explanations and expressions of anger circulated about ICC states parties that had not ratified the Kampala amendment exercising what some have called de facto immunity.57 In other words, and except in the case of Security Council referrals, the stories that circulated clarified what they saw as the injustice: by not adopting the amendment and allowing for reservations predominantly European and Asian states were seen as being able to shield themselves from the subject-​matter jurisdiction of the crime of aggression.58 The ability to opt in and opt out and apply selective justice at will prevailed in their angry discussions about the ICC only pursuing African cases or—​as the author has heard many times, ‘being put in place to shield the West and pursue the rest’.59 Thus, documenting the persistence of these ironies makes it all the more important to examine how global structural inequalities become manifest in particular international institutional forms and how those structures of inequality are not only felt, but expressed and circulate through particular narrative modes. We see this through the sentimental foundations of Kenyatta and others’ anti-​ ICC protest speech or the seductions of the Office of the Prosecutor’s celebration of judicial possibility. These affectivities matter because they influence the way people 55  ‘Report on the facilitation on the activation of the jurisdiction of the International Criminal Court over the crime of aggression’, ICC-​ASP/​16/​24. 56  ‘Activation of the jurisdiction of the Court over the crime of aggression’, Resolution ICC-​ASP/​ 16/​Res.5, para 2. 57  See Annex II of the Report, ICC-​ASP/​16/​24, 15. 58  The states which have ratified this are: Liechtenstein, Samoa, Trinidad and Tobago, Luxembourg, Estonia, Germany, Botswana, Cyprus, Slovenia, Andorra, Uruguay, Belgium, Croatia, Slovakia, Austria, Latvia, Spain, San Marino, Georgia, Malta, Costa Rica, Czech Republic, Switzerland, Lithuania, Finland, the Former Yugoslav Republic of Macedonia, El Salvador, Iceland, State of Palestine, the Netherlands, Chile, Portugal, Argentina, and Panama. On 6 December 2017, Panama deposited its instrument of ratification of the Kampala amendments, becoming the 35th state to ratify the amendments. 59  Chidi Anslem Odinkalu, ‘International Criminal Justice, Peace and Reconciliation in Africa’ (2015) 40(2) Africa Development.

45

The Road from Rwanda, Not Nuremberg

45

understand the rule of law in the contemporary period, and thus how people’s perceptions of law’s inequality (or promise) drive public engagement. These seductions do not work through pre-​given sentimental formulations; rather, it is through affective transference that people deploy affects and consolidate these narratives of power. Histories of law and its perceived legitimacy or illegitimacy are actively created within regimes of meaning and require work to sustain their seductions as rational.60 These narrative tropes are often sufficient, then, to provoke actionable results. Feelings of anger, resentment, and the victory of the survivor are made real not through their exacting historical equivalences but through an emotional ‘victim to be saved’ discourse that works to align like-​minded participants. As one interlocutor following Mbizvo’s speech commented, ‘I may not have agreed with her rendition of the history, but she’s right. “Victims” need us to carry the torch for our generation.’ Or as another insisted, ‘For me, it didn’t matter whether I agreed with her; in some ways I didn’t because her rendition of ICC history seemed flawed. But, her speech made me feel victorious all over—​all over my body. We all wanted to be part of the movement that she described. We wanted to be counted.’ Similarly, in reflecting on Kenyatta’s speech in Nairobi, one attendee shared the following: ‘I’m not a supporter of Kenyatta but when he gave that speech I felt something; there was something inside of me that tingled, that wanted to cry, that felt robbed and depressed. That feeling brought us together because we all shared that unfortunate [colonial] past.’ These comments suggest that the intensity of bodily feeling and its connection to particular sentiments perform sentimental work that can constitute groups, through what Emile Durkheim referred to as collective effervescence.61 Collective effervescence is the connection between the simultaneous sharing of thoughts and actions that excite individuals and, in doing so, can lead to group unification. These processes are social but are also emotional and affective. The bodily sensations that people describe are connected to their feelings of shared agreement, senses of victory or anger from historical conditions of dispossession and are key to making sense of the emotionally affective life of the law. They call on us to ask hard questions that explain why significant numbers of leaders, academics, members of civil society, and policy makers who may have formerly supported the ICC’s potential have since advocated withdrawing from its jurisdiction. Or why some who were suspicious of the ICC have joined the Rule of Law anti-​impunity movement because they lost faith in their leaders. These shifts in emotional attachments, as elusive as they may be methodologically, are key to understanding how shared emotional responses help form alliances. Seeing law through the way that public utterances retell it illuminates the connection between emotional affects and political engagement and raises questions about what contemporary international law really is, within what terrain it has operated, 60  ‘Report on the facilitation on the activation of the jurisdiction of the International Criminal Court over the crime of aggression’, ICC-​ASP/​16/​24. 61  On file with author: Prevalent narrative collected in fieldwork interviews.

46

46

Shaping Publics: Sentimentalization of History

and what it can do given the political constraints within which it exists. Thus, a deeper reflection on the speeches delivered by Mbizvo and Kenyatta to their respective audiences can shed light on how people’s relationship to the law is tied to the emergence of a new contemporary socio-​moral order through which social formations are constituted and disaggregated and moral orders regulated. Moral orders operate within knowledge regimes that are propelled by the justice imaginaries. Legal encapsulation reinforces particular discursive practices that are shaped by particular histories and temporalities of justice. As a product of sentimental campaigns for promoting justice, it is perceived by supporters as essential for protecting the victim and holding perpetrators accountable. The constructed figures—​the victim and the perpetrator—​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. By discursively representing these figures as objects of compassion and retribution, some people engaged in what Thomas Laqueur has called ‘sympathetic passions’, which he describes as bridging compassion and action.62 These sympathetic passions or emotional calls for action shape the sentiments that its advocates deploy. As a way of defining justice through the production of emotional affinities, the imbrication of legal encapsulation on contemporary rule of law formations has led to particular justice imaginaries with affective valences and ordering logics. And yet, tracing assemblages of affects involve tracing affects in non-​linear ways—​not from cause to effect but in relation to courses of events, their materialities, socialities, and aesthetics. This involves thinking about how a standing ovation at a public talk or a loud and unified roar in a crowd during a political speech crystallize and solidify stories or events. What we see is that certain historical lineages articulated through affective transference in public talks become feasible, thinkable, and acceptable because of the way justice is articulated. They set tones for emotional climates and shape existing fields of justice. Through these processes of public symbolic deployments and emotional community formation we see how affective transference works—​not through knowable emotion but through the constitution of emotional camps that are regimented in particular ways. Attempts to counter prevailing justice narratives abound in the contemporary period. They emerge as narratives that contravene other stories and reflect struggles over the knowledge production through which necessary alignments take shape. This process of alignment is how sentimentalized histories gain their power. For, as a process of re-​signification, they are shaped by controversies around meaning making and contestations around the power to enforce those meanings. But as we shall see later, as emotional affects that are operationalized with others, the process of social transference can be known not through actual experiences, but through the way that socio-​political consciousness can be assessed through how subjects articulate justice feelings as echoing their past experiences. These descriptions set in motion potential futures while they also tap into past experiences of injustice to be addressed. 62  Lynn Hunt (ed), The New Cultural History (California University Press 1989).

47

Affective Transference and the Remaking of History

47

Affective Transference and the Remaking of History Shamisu Mbizvo’s audience included a room full of approximately seventy-​five scholars of international law, human rights law, literature, and anthropology of law, as well as a range of historians of Africa and the West who were committed to various ways of studying international law’s impact on and relationship to Africa. Immediately following her speech, she received a standing ovation, even from colleagues who remained sceptical about the court’s work. Uhuru Kenyatta’s speech was delivered to an outdoor assembly of thousands committed to new possibilities for justice through the coalition parties. In both cases the narratives about international law were framed in relation to different historical formations. The past was interwoven with the present to make the contemporary period meaningful. Like Kenyatta’s narrative, Mbizvo’s retelling of the ICC’s past reflected morally coherent explanations concerning the making of the Rome Statute. The moral mission that led to the establishment of the contemporary rule of law movement was tied to its judicial inheritance—​the protection of victims as the basis of its pursuit of judicial accountability. In both speeches, messages about inter-​relationships between the past and the present responded to various past events and made the present meaningful. Yet, the viability of those attempts to link past and present is more about the speaker’s ability to use affective transference to communicate sentiments that are meaningful to others than they are about real modalities of interconnection or the ascription of stigma. To critique international criminal institutions, Kenyatta identified an ongoing violation to foreground a stigma that demarcates what is or is not acceptable. He then forged a ‘community of survivors’ by using language that invokes Kenyan citizens as beneficiaries of yesterday’s victim/​freedom fighters. From the opening, in which the ‘sacrifice and heroism of many Kenyans . . . won us freedom and sovereignty’, to his later invocations of ‘our forefather’ in order to index kinship, we see attempts to constitute a community. Once senses of ‘community’ were constructed, Kenyatta reconciled the substantively disjunctural historical narratives. He decentred the violence of the colonial project and brought it into relevance with the ICC’s African trials. By grounding his intervention in Kenya’s history of colonial violence and the popular perception of colonial sham trials, Kenyatta engaged in the transmission of feelings of resentment63—​from one person to another, from a leader to his constituency. Here transmission is possible through a colloquial knowledge about the colonial past and its related subjugation that is embodied in pre-​existing responses to loss, sham trials, and experiences of poverty. Suggestions about Africa’s place in an unequal past conjure sentiments that produce parallels with the contemporary world order where feelings of anger from past inequality prevail.

63  Margaret Wetherell, Affect and Emotion: A New Social Science Understanding (SAGE Publications 2012) 142.

48

48

Shaping Publics: Sentimentalization of History

Affective transference is possible with the invocation to celebrate the survivors of that inequality. The reference to their ilk highlights how he is, in turn, stigmatizing them. But the violence of colonial institutions, whose continuities seem to be reflections of contemporary inequality, contributes to the feelings of anger at play. Transference was possible and effective because the histories of colonial violence and its related dispositions were ‘decontextualized’ from their earlier historical logic and ‘recontextualized’ into contemporary realities.64 Through the realization of the relevance of the past to the present, members of the public gained an opportunity to constitute alliances with each other. The message was contingent on knowledge about colonialism, the relegation of colonial trials to sham trials, and African subordination, which were critical to the connections that audience members had to make. It was the decontextualization and recontextualization that characterized the magnetism of the emotional regimes being shaped that oriented the way Kenyatta’s message was received. The achievement of transference allowed the sympathetic listener to create mutually linked freedom fighters and revolutionaries out of both Jomo and Uhuru Kenyatta. Throughout Kenyatta’s speech, and in response to his passionate utterances, the audience applauded, and large numbers shouted for more. When he finished, their applause continued, almost uncontrollably. Affective transference happened through the rhetorical frenzies elicited in the speeches. Passing from person to person and group to group, the forms of collective effervescence65 created what Margaret Wetherall refers to as pulses of energetic relations. By engaging vociferously with the rhetorical link (their ‘ilk’) between Kenyatta’s fight against the ICC and the larger anti-​imperial struggles over the past century, the audience that was there that day confirmed the effectiveness of the conjuncture of like-​minded feeling expressions with performative displays of agreement. Eight out of ten of the people we polled confirmed that they were Kenyatta-​Ruto supporters. They described the moment as one where ‘the people spoke’, or where ‘Kenyatta and Kenya could be vindicated’. This in keeping with the top trending hashtag of 2012, #KenyaDecides. As one woman said in response to our question about the relevance of colonialism to this moment: ‘It’s true that colonial rule happened was long ago but it is relevant today. My family would not be poor and without land if it weren’t for the British. Kenyatta can reverse that, Kenya Decides!’ Another agreed and insisted, ‘Kenyatta is not to be blamed. He defended his people. He was like Jesus. And like Jesus, he delivered.’ Through the deployment of certain linguistic tools, the political speech act and the sentiments that it conjured reflected people’s application of partial concepts while still communicating full ideas about heroism, retribution of colonial wrongs, and hopes of reconciliation. The violations present with the invocation of colonialism and the historical use of colonial law to oppress the Mau Mau fighters were 64  Kamari Clarke and Mark Goodale, Mirrors Of Justice:  Law and Power in the Post-​Cold War (Cambridge University Press 2009). 65  Emile Durkheim, Elementary Forms of the Religious Life (ed. Mark S. Cladis, trans. Carol Cosman, Oxford University Press 2008).

49

Affective Transference and the Remaking of History

49

so commonly understood that it was unnecessary for Kenyatta to spell them out. Rather, the listener was made to call on his or her own sense of inequality in order to fill the gaps. The use of the unsayable is powerful because as a rhetorical strategy in justice circles in Kenya around ICC issues it operates within particular feeling regimes that shape alliances. What it enabled out of the experience of affirmations on that Hero’s day was an embodied sense of ‘Tuko Pamoja’—​meaning ‘we are together’. The sense of history shaping the present emerged from senses of displacement and deliverance. Accordingly, past subordination becomes a reflection of itself in the present. This is where the violence of the colonial past is effectively communicated through the embodiment of subjugation. And, as such, notions of justice are made real through the crafting of postcolonial narratives that the law is seen as being unable to deliver. Through spheres of re-​signification, representations of ‘ICC justice’ as injustice and new histories are mobilized through public speeches, silences, selective memories, and referential musings. As another attendee, Irene, told me in response to my question about that unspoken element in the speech: ‘It was what he didn’t say that made us all come together. Anyone who understood the connection was able to decide whose side they were on—​the oppressor or the oppressed.’ When I asked her how she felt and whether she could still say that the pain of colonial oppression was embodied, she quickly responded by saying in a low and remorseful tone that ‘as long as people are displaced from their land, suffering knows no time’. By this, Irene was suggesting that the infraction still continues to be felt in the present and shapes people in particular ways. This demarcation of a shared feeling is a product of the workings of emotional affects through which particular alliances are being formed. They are powerful not because their feelings are knowable or certain. They are powerful because the feeling regimes within which they operate are constitutive passionate alliances that, in turn, shape ‘the social’. The shaping of the social is therefore not about the truth of the feeling or whether the feeling is ultimately knowable. Rather, it is about affective justice—​that is, the way that the feeling of the moment is produced, embodied, communicated, and/​or made to constitute particular relations. Many of the responses we received from informants led to their constructing a hero figure out of Uhuru Kenyatta. Not only did they speak of how Jomo Kenyatta—​ the father—​had sacrificed his life for his people, but they also linked it to how, the son, Uhuru Kenyatta, mobilized forces to defend his people from displacement and violence. These claims were fuelled through emotionally affective articulations—​ through an enthusiastic appreciation for the contribution of their leader and his social-​familial lineage. Yet, not all of those polled were traditional Kenyatta supporters. Instead, they were from a range of ethnic groups and political party affiliations. Nonetheless, they reported to us that they were taken by the transformative frenzy of the moment. Amongst those who voted for the opposing party, they still reported that they believed that it was important to rethink how we understand culpability. For many, collective culpability was the framework through which to attribute responsibility.

50

50

Shaping Publics: Sentimentalization of History

Time and time again, people spoke of the ‘colonial other’, the ICC, or other forces that were to blame for the post-​election violence. Their language reflected feelings of oppression, disdain, subjugation, injustice, land being taken away, and the importance of there being a deliverer to return their land to them. They acknowledged local corruption, Somali-​Kenyan terrorism, etc. And while many complained bitterly about Kenyan politicians and inherent corruption, others also articulated the problem of violence as being outside of the conditions of their making. One attendee responded to a question about culpability with the following insight, ‘No, I didn’t vote for Kenyatta . . . But I believe that he is a pawn in a larger game . . . The Kenyan mafia is relevant here . . . The game is also being controlled by The West; back then it was the British, now it’s Europe and America.’ In the context of the embodied impact of Kenyatta’s speech and the rhetorical frenzy that led to chants from the crowds, we see how feelings mediate one’s relationship to the past, the present, and the future. For example, narratives of subjugation and violence became embodied through the retelling of such histories of subjugation. In the retelling the narratives pass from person to person and through the creation of pulses of energetic relations (Wetherell)66 emotional alliances are formed that become socially relevant. And through the embodied experience of participating, of being there, of feeling anguish, and being reminded of the histories that continue to propel Kenyan subjugation, people deploy emotional tools to make sense of particular messages and assess the way the message calls them be taken in—​ to be engaged bodily in experiences of public feeling. These public feelings have the ability to reinforce particular networks of socialization in which particular expressions, such as, ‘We’ve seen this Ilk before’ becomes more acute. Through the circulation of concepts that align with past narratives, invocations of togetherness—​however fictive—​highlight the way that morally coherent causalities can be mobilized to produce moral sentiments that do particular forms of momentary work. Protest speech or celebratory rhetoric demonstrates these dialogisms. As a partial practice, protest speech is a powerful modality because it makes emotional transference possible in contexts that may be substantively different otherwise. Kenyatta’s disjunctural history provided the emotional fodder to align the public’s inventory of social feelings with their social alliances. This connection between particular types of violence and historical facts that are evidently disjunctural can produce new social truths by constituting ‘the real’ dialogically through realignments of the social. This happens not because the audiences are uninformed, but because of the power of available historical tropes and icons and their relevance to constituting meaning of alliance and connection. What the example of Kenyatta’s speech shows us, therefore, is that substantively disjunct histories can be made real through the iconic construction of Jomo Kenyatta as hero, as freedom fighter, thus through the articulation of the relevant continuities, Uhuru Kenyatta as inheritor of that iconic meaning. The production of the real, therefore, involves the deployment of histories that are ultimately sustained through 66 Durkheim, Elementary Forms of the Religious Life (n 65).

51

Affective Transference and the Remaking of History

51

subsequent networks of socialization. Those histories, as retold, become powerful because of the feeling regimes within which the iconic signs invoked operate in relation to particular nationalist founding tropes. The success of affective transference is possible precisely because icons, narrative tropes, and affective embodiments have the power to demand of publics particular ways of being in the world. Once articulated, these discourses are sustained through networks of socialization, affective practices, and bodily expressions communicated through narrative histories. For her part, Mbizvo’s use of transference allows her to establish the ICL, the ICC, and its actors—​the OTP—​as the heroes and heroines of ‘victims’ around the world. Utterances such as, ‘The ICC exists to hear the voices of victims of the most atrocious crimes, when their cries fall on deaf ears’, can be used to suggest that the judicialization of political issues can offer tangible solutions. As such, discourses that might normally operate in the unconscious through words such as ‘victims’ or ‘ending impunity’ can be formulated through a specified inventory of popular references that are more socially familiar than they are individually experienced. Themes of long historical connections establish particular affective resonances and connect socially or institutionally to emotive templates. Accordingly, past subordination becomes a mechanism for articulating contemporary inequalities, but the past is always signalled dialogically. That is, it is seen as building on the present, thereby constituting a reflection of itself in the present. Protest speech or celebratory rhetoric needs to demonstrate this dialogism. As a partial practice, protest speech is a powerful modality because it makes emotional transference possible in contexts that may be substantively different otherwise. This connection between particular types of violence and historical facts that are evidently disjunctural can produce new social truths by dialogically constituting ‘the real’ through new realignments of the social. This happens not because the audiences are uninformed, but because of the power of existing emotional histories and their relevance in constituting meaning spaces of alliance and connection. Affective transference is successful in forming social alliances precisely because passionate utterances have the power to convene publics, no matter how fleeting or temporary their commitments. In order for alliances to congeal, the roads of emotional causality must be presented as part of a dialogic continuum that renders structural violence unsayable, and unrelated. What is important is how the gaps in understanding causes of violence provide a space for indirect connections to be made between those prosecutions. The related events, people, and the power relations that enable emotional sharing contribute to the establishment of the ordinary logic of law’s work. In Mbizo’s description of the ICL’s 100 years of development, for example, what we see is the profound imagery of the grand march to establish the permanent court as the ultimate evolutionary form of justice for all. A plethora of key international criminal law scholars—​from Beth Van Shaack and Ronald Slye, to Kathryn Sikkink, Cherif Bassioni, and Antonio Cassese to name only a few—​have popularized these narratives about international criminal prosecutions shaping new senses of justice for victims.67 This use of sentimentality is emotionally pervasive in the literature. Who wouldn’t want to protect victims? 67  Van Schaack and Slye, ‘A Concise History of International Criminal Law’ (n 14) 7; Kathryn

52

52

Shaping Publics: Sentimentalization of History

Conclusion What this chapter has shown is that substantively disjunct histories are often made real not through actual historical equivalences but through the symbolic construction of the ‘victim’ fetish—​be it a survivor of election violence or a persecuted anti-​colonial freedom fighter. This type of knowledge production involves the deployment of sentiments of compassion and responsibility around the protection of victims who are connected to the culmination of a 100-​year history of judicial strategies that are ultimately sustained through subsequent networks of socialization. It is also shown through the re-​signification of the ‘victim/​survivor’ of colonialism narrative through which particular tropes of imperial justice are used to hold imperialists accountable. Through the study of the transference of these passionate utterances we see how structurally dissimilar phenomena can be decontextualized and recontextualized to produce otherwise contested linkages. For the ICC’s OTP under Fatou Bensouda, this involves the encounter with new 1990s’ moral sentiments in which the promise of the ICC’s 100-​year historical trajectory demonstrates the construction of international law’s moral legitimacy as a crucible for social change. The movement’s mantra that ‘no one is beyond the law’ informs the OTP’s invocations of their work as being centrally about protecting victims. When understood in relation to affective transference, we see how hope for judicial legitimacy68—​meaning the instantiation of legal processes as viable and with the potential to achieve legal fairness, certainty, and predictability—​can be breathed into new justice experiments. For various African leaders and their publics, alternate notions of judicial justice involve articulating new vocabulary for analysing the historical underpinnings of violence and the dialogic presence of the ancestors within. In the end, determining which justice mechanisms are appropriate is central to how new moral orders are being mobilized to inspire sentimental responses to injustice. Notions of justice are made real through the crafting of postcolonial narratives that the law is seen as being unable to deliver. Through spheres of re-​signification, representations of ‘Hague Justice’ as injustice and new histories are mobilized through public speeches, silences, selective memories, and referential musings. Their truths become manifest in sentimental attachments that accent the cadence of daily life. In the end, such attachments establish the moral logic that shape the way that various publics achieve the feeling that justice has been served in the contemporary period. In both cases, such passionate utterances are central to the social alliances that are formed—​as in a celebration-​day crowd or in the spaces, like The Hague, in which international justice actors engage in the production of affective justice. Once the affective domains are narratively constituted through particular histories and

Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (W. W. Norton & Company Inc. 2011). 68 Wetherell, Affect and Emotion (n 63).

53

Conclusion

53

sentimentalized in particular ways, a key component of its effectiveness involves the embodiment of its conviction as demonstrated in various justice campaigns. With increasing relevance of a ‘victim’ through processes of legal encapsulation, this embodiment of justice is reflective of affective justice and is critical for understanding the actual making of international justice through its place in the life of the law.

54

4 From the Sentimental Story of the State to the Verbrecherstaat, Or, the Rise of the Atrocity Paradigm Lawrence Douglas

Introduction In 1947, while detained at Nuremberg, where he was interrogated but not charged, Carl Schmitt, the erstwhile ‘crown jurist’ of the Third Reich, penned a critique of the International Military Tribunal (IMT), which by then had already issued its verdicts against the major Nazi war criminals. While attacking aspects of the prosecution’s case, Schmitt conceded that the ‘monstrous atrocities of the SS and Gestapo explode the categories of all hitherto existing international law’.1 Schmitt’s words have come to supply a familiar trope in the description of Nazi atrocities. During the Nuremberg trial, Hannah Arendt famously observed, ‘For these crimes, no punishment is severe enough . . . We are simply not equipped to deal, on a human level, with a guilt that is beyond crime.’2 In his opening address at Nuremberg, chief American prosecutor Robert Jackson sounded similar chords. ‘Civilization asks,’ Jackson said, ‘whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance.’3 These statements share a vision of jurisprudential crisis, of law struggling to accommodate the shocking reality of state-​sponsored mass atrocity. Nazi crimes exploded what I will call the ‘sentimental story of the state’—​the idea, lodged in Western political and jurisprudential thought, that the state represented the greatest bulwark against the disordering effects of violence and that obedience to the law represented the supreme virtue of the pacified citizenry. Nazism revealed the terrible capacity of the state itself to turn reprobate, a phenomenon the German philosopher 1  Carl Schmitt, ‘The International Crime of Aggression’ in Carl Schmitt: Writings on War (ed Timothy Nunan, Polity 2011) 18. 2 Hannah Arendt, Hannah Arendt/​ Karl Jaspers Correspondence, 1926–​ 1969 (Harcourt Brace Jovanovich, 1st US edn, 1992), 54. 3  Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–​1 October 1946 (Nuremberg, Germany) (hereafter IMT), vol. I, 155. From the Sentimental Story of the State to the Verbrecherstaat, Or, the Rise of the Atrocity Paradigm. Lawrence Douglas. © Lawrence Douglas, 2019. Published 2019 by Oxford University Press.

5

The Sentimental Story of the State

55

Karl Jaspers designated with the term Verbrecherstaat, ‘the criminal state’.4 Jaspers’ term named the novel achievement of Nazism—​that it turned the state into the very agent of criminality.5 The need to abandon the sentimental story of the state and replace it with a new script, one that could accommodate and subdue the terrifying spectre of the Verbrecherstaat, posed exceptional challenges to the legal imagination. Much of the scholarship devoted to this issue has tended to highlight the shortcomings of these efforts, insisting that a discourse anchored in precedent and prospective rules was singularly ill-​equipped to master the challenges posed by unprecedented atrocities.6 This work, to my mind, overlooks one of the most remarkable aspects of the law’s response to the Verbrecherstaat—​how it made visible the suppleness and elasticity of the legal imagination. Far from hidebound, the effort to juridically come to terms with the Verbrecherstaat led to extraordinary legal innovations—​the creation of untested institutional forms, the introduction of new jurisdictional principles, the use of unorthodox evidentiary conventions, and most of all the shaping of novel incriminations that transformed inter-​state aggression and intra-​state atrocities into international crimes. In this chapter, I hope to show that the law’s response to the Verbrecherstaat continues to bear the traces of its contact with what remains the paradigmatic case—​ Hitler’s Germany. The efforts to master the challenges represented by Nazi Germany left instabilities within the fledgling system of international criminal law, instabilities that have since grown into structural faultlines in the system. Indeed, the radical repudiation of the sentimental story of the state has left international criminal law in a vexed state, in which basic distinctions—​between criminal and enemy, and between policing and war-​making—​have become hopelessly volatized. As a result, international criminal law finds itself incapable of drawing distinctions foundational to any legal system—​between actions that are lawful and those that are forbidden.

The Sentimental Story of the State The ‘sentimental story of the state’ received its most influential telling in Hobbes’ Leviathan. As we recall, Hobbes asked his readers to follow him in an imaginative exercise—​how, he asked, would people behave in a state without a state, that is, in a ‘state of nature’?7 His answer: fearfully and therefore violently. Because men are

4  ‘Für Völkermord gibt es keine Verjährung’ Der Spiegel, 3 October 1965, http://​www.spiegel.de/​ spiegel/​print/​d-​25803766.html. 5  Karl Jaspers, Wohin treibt die Bundesrepublik? (Piper 1966). 6  See, eg, Lida Maxwell, Public Trials: Burke, Zola, Arendt, and the Politics of Lost Causes (Oxford University Press 2017); Rebecca Wittmann, Beyond Justice: The Auschwitz Trial (Harvard University Press 2005); Donald Bloxham, Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (Oxford University Press 2003). 7 Hobbes, Leviathan (ed Richard Tuck, Cambridge University Press 1996). Hobbes, we should recall, did not pioneer the idea of the state of nature. Grotius, whom Hobbes read, had already framed the concept.

56

56

The Rise of the Atrocity Paradigm

naturally self-​protective, in conditions of uncertainty they will rightfully fear their fellow man, likewise seeking self-​preservation. The self-​protective, fearful agent will not simply stand in guard against his neighbour’s possible aggression, prepared, if necessary, to retaliate. Retaliation is a disastrous strategy of defence, as our neighbour, intent to protect himself, will try to kill us with a lethal first strike. To guard against this, we must launch a preemptive strike and kill him first. Locally, this represents perfectly rational behaviour, and yet when all persons in a state of nature act in this fashion, launching preemptive strikes, they succeed only in creating the very evil they most fear: ‘warre’, a horrifically irrational state of violence and peril that renders life ‘solitary, poor, nasty, brutish and short’—​with the clear emphasis on short. Hobbes’ bold exercise in political imagination conjures civil society in the absence of a strong state as necessarily warlike. As Richard Tuck has argued, the heuristic was itself a device for conjuring fear: by presenting his readers with a vision of the unavoidable catastrophe that attends the unravelling of the state, Hobbes delivered a powerful argument for subjects to remain ‘in political submission to their sovereign’.8 And so I call this the ‘sentimental story of the state’—​sentimental, as the vision of the state of nature powerfully appeals to our emotions, and sentimental as it fosters an attachment to the state less rational than affective: we are invited to feel gratefully bound to the leviathan that protects us from ourselves. The extreme and persistent violence of the state of nature may look horrific, and yet the enmity that defines that state only arises from the existential struggle to survive. This is enmity without moral censure: our enemies are adversaries in a pitted struggle to survive, not morally deficient beings. We are authorized to destroy them, but not to punish them, for in threatening our life they have done nothing wrong. Indeed, our enemy is acting in a manner fully consonant with the law of nature, and thus the very idea of punishment plays no role whatsoever in the endless cycle of violence. Only with the advent of the sovereign is the enemy transformed into the criminal, the violator of the state’s positive law. With the promulgation of positive law, the idea and practice of justice become possible,9 and the violence directed against the criminal will now come in the form of punishment inflected with moral opprobrium. But if the state is strong, as Hobbes argues it must be, only a small percentage of those pacified by the sovereign will engage in criminal acts; the overwhelming majority of those previously riven by enmity will become something altogether different—​subjects and citizens. The sovereign secures internal order and peace, and so makes possible the flourishing of civil society. In the parlance of Schmitt, the sovereign has made us friends. The state makes us friends, then, through an astonishing project of internal pacification. Its monopoly on authorized violence finds perfection in the modern nation-​ state, a reality captured in Hans Kelsen’s startling and elegant formulation: ‘The use of force of man against man is either a delict or a sanction’.10 The only exception 8  Richard Tuck, The Rights of War and Peace (Oxford University Press 1999) 8. 9 Hobbes, Leviathan (n 7) 90. 10 Kelsen, Pure Theory of Law (trans Max Knight, University of California Press 1967) 42.

57

The Sentimental Story of the State

57

to this astonishing consolidation is the case of self-​defence, the use of force to repulse a criminal attack in circumstances too exigent for the state to offer protection. But even here, it is the state that defines the circumstances in which self-​help is permissible. The enemy does not, however, vanish with the advent of the state, just as the state of nature does not disappear. Rather, sovereigns on the international stage now confront each other as did persons in the absence of a sovereign.11 Now, however, the ‘state of nature’ is no longer a political imaginary—​it defines a terrain of real or potential conflict. Indeed, instead of saying that Hobbes conceptualized sovereigns like persons in a state of nature, it would be more accurate to say that Hobbes imagined persons in a state of a nature like sovereigns on the international stage.12 And so while civil society has been pacified by the Leviathan, the international stage remains an arena of enmity and peril. No sovereign stands supreme in its rights and every sovereign is authorized to protect itself and its interests. As Kant observed, in the Hobbesian account there can be no end to the state of war on the level of relations between states. The law of nations, far from placing limitations on the behaviour of states, allows all possible behaviour—​most notably and calamitously preemptive strikes. And so, as Tuck has observed paraphrasing Kant, while men ‘sought to avoid death by creating leviathan states’, living in states creates a fresh risk of death, particularly as states ‘confronted each other in the circumstances of modern warfare’.13 Even those theorists traditionally understood to rewrite the sentimental story of the state, only modified the terms. Hugo Grotius, the Dutch polymath long hailed as the father of international law, penned the first systematic treatise on the law of war, De jure belli ac pacis (On the Law of War and Peace), two decades before Hobbes put the finishing touches on Leviathan. Having witnessed ‘throughout the Christian world a licentiousness in regard to war, which even barbarous Nations ought to be ashamed’, Grotius insisted, in stark contrast to Hobbes, that the natural law of nations places meaningful limits on this licence.14 States, he argued, may only justly go to war in response to a threatened or actual wrong, and when no peaceful alternative exists. War waged simply to seize booty or territory is unjust. Yet for all his discussion of what makes war just, Grotius concluded that international law did not permit a third party to judge a sovereign’s determination that his rights had been violated. In this respect, the just war requirement was essentially hollow, since every sovereign reserved the right to decide for himself the justness of his cause, and no other state could question that decision. Grotius ultimately placed no more robust a limitation on sovereign aggression than did Hobbes. If anything, Grotian theory strengthened the sentimental story of the state, as it added a patina

11 Hobbes, Leviathan (n 7) 90. 12  Consider Rousseau’s observation that the Hobbesian man was ‘really a state all along’. See Tuck, The Rights of War and Peace (n 8) 230. 13 Ibid. 14 Grotius, De Jure Belli et Pacis (The Rights of War and Peace, Richard Tuck, ed. (Barbeyrac translation) (Indianapolis: Liberty Fund 2005), ‘Preliminary Discourse’, xxix.

58

58

The Rise of the Atrocity Paradigm

of legality to the relations between nations. For Hobbes, these relations were essentially lawless, controlled only by the thin terms of natural law; for Grotius, whose vision of the natural law of nations was far thicker than Hobbes’, war-​making was limited only by the sovereign’s need to justify to himself his reason for launching hostilities.15 The Grotian world, then, was law abiding, even if law provided virtually nothing in the way of constraint. The most sentimental version of this story found word in Carl Schmitt’s mythopoeic positing of the jus publicum Europaeum, the system of European public law that emerged out of Hobbesian-​Grotian theory. Dismayed by the rise of liberal globalism, Schmitt located a stabilizing virtue in the ‘historical’ system in which sovereign states had ‘neither a common legislator nor a common judge’.16 In granting each sovereign ‘the same jus ad bellum’—​the same reciprocal right to wage war—​this system, Schmitt argued, allowed for a ‘nondiscriminatory concept of war’. In ‘The Turn to the Discriminating Concept of War,’ a lecture to Nazi jurists delivered in 1937, and again in his post-​war writings, Schmitt defended the system that required sovereigns to treat each other as justi hostes—​as just enemies, where ‘just’ implies no normative judgment of the enemy’s cause, but simply recognizes that all enemies occupy ‘legally and morally . . . the same plane’. This idea, Schmitt insisted, makes possible and safeguards the idea of neutrality, as third parties can only afford to behave as neutrals when conflict lacks a crusading moral or legal dimension. The flip side of the neutral party and the liminal figure in the sentimental story was the hostis humani generis—​the enemy of all humankind. A figure conjured in admiralty law and concentrated in the persona of the pirate, the hostis humani blurred the distinction between enemy and criminal. He could be attacked like a foe but also seized and treated as an object of internal judicial administration. The hostis humani thus brought the sovereign’s two essential powers—​policing and war-​making—​to bear upon a single stateless figure of enmity and opprobrium. The idea that the hostis humani could be an agent of a state, or more radically, the idea that a state might, in its totality, constitute a hostis humani, simply lay beyond the sentimental story of the state and was indeed largely unintelligible to it. While tyranny and military predation were hardly unfamiliar topics to western political thought, this literature remained faithful to the sentimental story that viewed the state as the ultimate bulwark of security and order. Writing in 1937, Schmitt specifically dismissed as utterly far-​fetched the proposition that a state could ever be so ‘totally criminal

15  If the Grotian system placed any greater constraint on sovereign behaviour, it did so largely on the level of public rhetoric. As Oona Hathaway and Scott Shapiro have recently documented, for centuries, nations justified their war-​making in ‘war manifestos’—​part legal brief, part public relations document—​which laid out, often in great detail, their reasons for resorting to force. These manifestos make two things become clear: first, that nations were eager to avoid the ignominy of appearing to go to war without justification; and second, that almost anything could supply that justification. Oona A. Hathaway and Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (Simon & Schuster 2017) 31–​55. 16  Carl Schmitt, Writings on War, also The Nomos of the Earth in the International Law of Jus Publicum Europaeum (trans G.L. Ulmen, Telos Press 2006) 147.

59

The Spectre of the Verbrecherstaat

59

that . . . in its entirety [it] must be turned into a “hostis generis humanis” ’—​an enemy of humanity.17

The Spectre of the Verbrecherstaat The Nazi state shredded the sentimental story. The sovereign’s claim to plenary, unreviewable power to police and wage war could not survive the deformations of Hitler’s Germany. But the shredding of the sentimental story and the drafting of a new script for the Verbrecherstaat raised profound juridical questions. Did every modern bureaucratic nation-​state contain the germ of a Verbrecherstaat or was it a problem unique to Germany? As Kim Priemel has recently documented, French prosecutors at Nuremberg enlisted the help of Edmond Vermeil, a prominent historian whose work supported the Sonderweg thesis, the idea that Germany, having undergone rapid industrialization without jettisoning the vestiges of Prussian feudalism and militarism, remained uniquely vulnerable to the deformations of Hitlerism. In this telling, the Verbrecherstaat was a problem not of modernity, but of the failure to properly master the transition to it, with Nazi Germany cast as a monstrous hybrid, born of a catastrophic union of the pre-​modern mind and modern organizational technique.18 A rather different story emerged in the American telling at Nuremberg. The conspiracy charge, as pioneered by Americans such as Murray Bernays, was meant to solve a juridical problem: how could Allied prosecutors tie together a diverse group of Nazi statesmen and German military leaders under a single criminal rubric?19 Here again, Priemel has done alert and important work, showing how the conspiracy charge pushed the American team to present the Nazi state as run by a band of ‘thugs’, ‘villains’, or ‘gangsters’20—​a potent set of tropes imported from the law of organized crime, where the law of conspiracy had developed and proven its greatest utility. In presenting Germany as controlled by a Hitlerite ‘clique’, the conspiracy narrative, in contrast to the Sonderweg story, portrayed Germany as less an evil sui generis than as a nation whose administrative, judicial, policing, and military resources had been hijacked by a band of criminals. The Sonderweg story spoke of a German national pathology, and so pushed in the direction of collective guilt, a result the American prosecutorial team wanted to avoid, as one of its goals was to use the trial as a means of—​to use today’s parlance—​transitional justice. The conspiracy story helpfully, then, cast the German people less as accessories than as victims of the criminal clique that led their country, a comforting account, indeed.

17  Schmitt, ‘The Turn to the Discriminating Concept of War’ in Schmitt, Writings on War (n 1) 68. 18  Kim Priemel, ‘Cunning Passages: How Historiography Underpinned the Nuremberg War Crimes Trials’ (manuscript on file with author); see also Kim Priemel, The Betrayal: The Nuremberg Trials and German Divergence (Oxford University Press 2016). 19  See Bradley F. Smith, The Road to Nuremberg (Basic Books 1981). 20  Priemel, ‘Cunning Passages’ (n 18).

60

60

The Rise of the Atrocity Paradigm

Just as we find different visions of the Nazi Verbrecherstaat, we also encounter dramatically different accounts of the acts that lay at the heart of the German state’s criminality. Jaspers was not alone in describing the Nazi state as criminal, or even the first to do so. In a monograph that influenced the creation of the IMT, the great Soviet jurist Aron Trainin had characterized the Nazi state as criminal, and had even weighed the possibility of treating the state as a legal person for the purposes of a criminal trial.21 For Trainin, what made Nazi Germany a Verbrecherstaat was its aggression: its unprovoked attack on its neighbours—​most notably, its criminal invasion of the Soviet Union. Trainin’s vision of aggression as the Nazis’ principal crime found support in the Sonderweg thesis, which portrayed Prussians as ‘barbarians’ who had learned to ‘handle a rifle’ at the same time that they mastered ‘bookkeeping by double entry’.22 It also found powerful echoes in Telford Taylor’s description of Germany as a ‘military-​minded nation’ whose leaders ‘relish war as something desirable in itself ’.23 Most notably, this vision of the Verbrecherstaat found juridical expression in the IMT charge that Nazi Germany had committed ‘crimes against peace’—​had planned and waged aggressive war in violation of international law and treaties, a charge that represented the most emphatic rejection of the basic prerogative of sovereignty vouchsafed in the sentimental story. But this was hardly the only vision of what made Nazi Germany a Verbrecherstaat. For Jaspers and Arendt, acts of atrocity, and not aggression, nestled at the heart of the Nazi state’s essential criminality. At Nuremberg, Nazi atrocities were digested in the legal category of ‘crimes against humanity’. Both ‘crimes against peace’ and ‘crimes against humanity’ were at the time novel incriminations, with the latter jurisdictionally dependent on the former. At Nuremberg, these incriminations—​ along with traditional war crimes—​were meant to work in tandem to provide a seamless picture of Nazi criminality. And yet the crimes they named represented fundamentally different, and ultimately antagonistic understandings of the nature of the Vebrecherstaat, antagonisms that have only become clear over time.

Aggression Over Atrocity The effort to criminalize aggression predated the advent of the Nazi state. The horrors of the First World War—​the staggering futility of trench warfare, the sheer wastefulness of men and matériel—​gave powerful impetus to treat the launching of war, and not violations of jus in bello, as the principal catastrophe. In its report of 29 March 1919, prepared for the Paris Peace Conference, the ‘Commission on the Responsibility of the Authors of War’ accused Germany of having started ‘a war of aggression’ before regretfully acknowledging that aggressive war ‘may not be

21  See A.N. Trainin, Hitlterite Responsibility under Criminal Law (trans Andrew Rothstein, London Hutchinson 1945). 22  A.J.P. Taylor, The Course of German History (Hamish Hamilton 1945) 21. 23  Quoted in Priemel, ‘Cunning Passages’ (n 17), see also IMT, Vol XXII, 295–​7.

61

Aggression Over Atrocity

61

considered as an act directly contrary to positive law, or one which can be successfully brought before a tribunal’.24 In the interwar years, the effort to outlaw the unprovoked resort to warfare became a major preoccupation of international jurists. Eduard Descamps, a prominent Belgian lawyer and a member of the League of Nation’s Advisory Committee of Jurists, proposed the creation of an international criminal court with jurisdiction over both conventional war crimes and acts of aggression. Vespasian Pella, the renowned Romanian jurist and a leading member of the Association Internationale de Droit Penal, provided greater clarity to the effort by offering a detailed definition of the crime of aggression and by insisting that individuals be held responsible for its violation.25 Although the Geneva Protocol of 1924, which declared aggressive war ‘a violation of th[e]‌solidarity [of nations] and . . . an international crime’,26 failed to gain acceptance in the League of Nations, four years later witnessed the sweeping ratification of the Kellogg-​Briand Peace Pact in 1928, a lapidary instrument—​the entire treaty consisted of two sentences—​that purported to outlaw war altogether. Accompanying and parallel to these efforts was the move to treat acts of state-​ sponsored atrocity as the core international crime. A  forerunner to the idea of ‘crimes against humanity’ gained expression in the famous Martens Clause in the preamble of The Hague Convention of 1899, which declared that all belligerents in armed conflict remain bound to the ‘laws of humanity’.27 In a declaration of 24 May 1915, France, Russia, and Great Britain explicitly condemned the massacres of Armenians as ‘crimes against humanity and civilization for which all members of the Turkish government will be held responsible . . . ’.28 Four years later, members of the Commission on Responsibilty in Paris proposed the creation of a specially constituted international criminal court that would prosecute those ‘guilty of offenses against the laws and customs of war or the laws of humanity’.29 Obviously this effort foundered; the Kaiser, having fled to the Netherlands, never faced criminal charges; and the handful of trials conducted by German courts in Leipzig of German officers accused of war crimes turned into little more than pro forma exercises that failed to offer a precedent for the prosecution of violations of the ‘laws of humanity’. All the same, the interwar years did present the spectacle of a handful of atrocity trials, albeit in unobvious form. Perhaps the most unusual of these was the Berlin trial of Soghomon Tehlirian for the assassination of Talaat Pasha, the former Grand Vizier of the Ottoman empire and an architect of the mass killings of Armenians in 1915. At trial, Tehlirian freely admitted to having shot

24  ‘Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties’ (Jan–​Apr 1920) 14(1/​2) The American Journal of International Law 95–​154, 138. 25  See Mark Lewis, The Birth of the New Justice (Oxford University Press 2014). 26 Protocol for the Pacific Settlement of International Disputes, https://​www.wdl.org/​en/​item/​ 11582/​view/​1/​1/​ 27  Convention with Respect to the Laws and Customs of War on Land (Hague, II) (29 July 1899), http://​avalon.law.yale.edu/​19th_​century/​hague02.asp. 28  Quoted in Leo Kuper, Genocide: Its Political Use in the Twentieth Century (Yale University Press 1981) 20. 29  AJIL, 117.

62

62

The Rise of the Atrocity Paradigm

Talaat on a quiet Berlin street, declaring, ‘I have killed a man, but I am not a murderer’.30 Insisting that his had been a vigilante killing, Tehlirian turned the trial into an interrogation of Talaat’s role in the mass deportation and murder of the Turkish-​ Armenian population. The jury acquitted Tehlirian, finding that the ‘assassin’ had acted out of extreme trauma, a verdict hailed by many as proper and just.31 Tehlirian’s vigilantism can be understood as a faute de mieux, an act of self-​help born of law’s failure to reckon with state-​sponsored atrocity. Nuremberg appeared to correct that failure. The efforts that had foundered in 1919—​to treat aggression as an international crime, to establish an international court freed from the straitjacket of sovereign immunity, and to try violations of the laws of humanity—​now met with impressive, though not unqualified success. As for which crime would constitute the paradigmatic offence in the emerging international legal system, Nuremberg marked the clear triumph of the aggression paradigm. ‘Crimes against peace’ occupied the centrepiece of the prosecution’s case; and the so-​called ‘nexus’ requirement, drafted into the Charter, restricted the tribunal’s jurisdiction over ‘crimes against humanity’ to those connected to Nazi aggression and war crimes. This jurisdictional limitation removed from the tribunal’s scrutiny the Nazis’ forced sterilizations of the physically and mentally ‘unfit’, the November pogrom against the Reich’s Jews, and all other German-​on-​German crimes perpetrated before the Wehrmacht crossed the Polish frontier on 1 September 1939. The view that aggression described the paradigmatic crime of the Verbrecherstaat also emerged in the granular accounts that Nuremberg offered of Nazi exterminatory practices, which astonished in their geographic reach, organizational sophistication, and industrial design. The Allies began the process of legal reckoning with Nazi extermination even before the war ended: in 1943, Soviet prosecutors in Krasnodar documented the ‘fiendish crimes’ of the ‘German fascist invaders’.32 Yet when it came to describing the victims, virtually all of whom were Jewish, the prosecutors spoke only of Soviet citizens; the word ‘Jew’ never so much as appears in the trial record. The same pattern repeated itself in the Kharkov trial staged half a year later, the first to prosecute Germans (only Russian and Ukrainian collaborators were charged in Krasnodar).33 Here again Soviet prosecutors described the victims, nearly all of whom were Jewish, as ‘Soviet citizens’. These were hardly inadvertent omissions born of imperfect information. To the contrary, these early trials expressed what came to be the standard Soviet story that treated the specific targeting of Jews as an accidental aspect of Hitler’s anti-​Bolshevism. Through the lens of Marxist-​ Leninism, the systematic extermination of the Jews was not a distinctive, much less irreducible element of Nazi politics, but an epiphenomenon, a symptom of pathological fascist-​capitalism. Far from highlighting the singular nature of the genocidal 30  Vicken Cheterian, Open Wounds: Armenians, Turks and a Century of Genocide (Oxford University Press 2015) 127. 31  See Stefan Ihrig, Justifying Genocide: Germany and the Armenians form Bismarck to Hitler (Harvard University Press 2016). 32  The People’s Verdict; a full report of the proceedings at the Krasnodar and Kharkov German atrocity trials (Hutchinson & Co. 1944) 15. 33 Ibid.

63

Aggression Bows to Atrocity

63

violence directed at Europe’s Jews, Soviet trials sublated race and religion into the larger Marxist category of the political. At Nuremberg, the Americans appeared to tell a very different story. In his opening statement, Justice Jackson highlighted the astonishing virulence of Nazi antisemitism, which elevated the killing of Jews to an end unto itself. And yet the IMT’s restrictive definition of crimes against humanity also led Jackson to frame a second parallel narrative. Bending history to fit the nexus requirement, Jackson argued that the Nazis used the persecution and killing of Jews to eliminate obstacles to waging war and as a test case in the subjugation of conquered people.34 In so arguing, Jackson sought to satisfy the required nexus between pre-​war crimes against humanity and the Nazis’ war of aggression, thus bringing these early crimes within the Tribunal’s jurisdiction. The effort failed; the court refused to consider these pre-​war acts, but the deeper point remained that Jackson’s historical narrative was shaped by the need to jump through the Tribunal’s jurisdictional hoops. And so the Soviet and American narratives came to share one common feature—​ they both portrayed extermination as the result of aggression. For the Soviets, extermination was a feature of fascist aggression hell-​bent on the destruction of the communist state; for the Americans, extermination was integral to the subjugation of peoples conquered by territorial conquest. In both narratives, mass atrocity was a consequence or technique of Nazi aggressive militarism.

Aggression Bows to Atrocity With seventy years of hindsight, we can say the triumph of the IMT’s aggression paradigm proved short-​lived. If Nuremberg marked the triumph of the aggressive war paradigm, it also heralded its eclipse.35 Even at the time, critics attacked the notion of crimes against peace as inadequately defined and as a violation of the principle of nullum crimen sine lege, the solemn bar against retroactivity. The criticisms were hardly trivial. The sentimental story of the state had long treated all wars as equally lawful; jurists at Nuremberg now had to insist that the international community had repudiated this view. But when had this repudiation occurred? By August 1914? Certainly not, as the 1919 Commission on Responsibility had concluded that German aggression had not constituted a recognized international crime. Did it suddenly happen on 27 August 1928 with the signing of the Kellogg-​Briand Pact? While the Pact spoke of renouncing war, it never mentioned criminalizing aggression, which, in any case, it left undefined. At best, the IMT could insist that sometime before 1 September 1939, the international community had abandoned the sentimental story. Still, doubts remained. Professor André Gros, a French delegate

34  IMT, vol. II, 117–​18. 35  See ‘Report of the International Law Commission covering its Second Session, 5 June–​29 July 1950, Document A/​1316’, reprinted in Yearbook of the International Law Commission II (1950): 374–​8.

64

64

The Rise of the Atrocity Paradigm

to the London conference that drafted the IMT charter, bluntly noted that ‘crimes against peace’ was the ‘creation of four men, who are just four men’.36 Yet the horrific quality of Nazi aggression served to hide the instabilities within the incrimination. Hitler’s Ostkrieg split the difference between aggression and atrocity. The Ostkrieg was a war annihilation; atrocity followed in the wake of the Wehrmacht’s advance, with SS Einsatzgruppen combing the conquered countryside and murdering hundreds of thousands of civilians, largely Jews. But atrocity was also the very means of waging war. In the case of the Ostkrieg, aggression referred not simply to warfare that was unprovoked but to warfare waged with such astonishing brutality that the distinction between violations of jus ad bellum and jus in bello completely vanished. Indeed, even by the standards of the traditional system of European public law that had long regarded all forms of aggression as lawful, Hitler’s Ostkrieg was a shocking outlier. No sooner had the IMT ended than the concept of crimes against peace began showing its instabilities. Nuremberg’s companion tribunal in the Far East convicted several Japanese statesmen and generals of waging a war of aggression, but did so over the vehement 700-​page dissent of the Indian Judge Radhabinod Pal, who condemned the charge as retroactive, imprecise, and partisan—​in short, a law concocted by Western lawyers to entrench a status quo established by centuries of Western aggression.37 For Pal, Western jurists repudiated the sentimental story just at the time that non-​Westerners were learning to absorb its lessons. The twelve ‘successor trials’ staged by the American military in Nuremberg (together known as the Nuremberg Military Tribunal, hereafter NMT), further spelled the demise of the aggression paradigm. Crimes against peace appeared as a formal charge in only four cases—​the IG-​Farben trial (Case 6), the Krupp trial (Case 10), the Ministries trial (aka the Wilhelmstraße trial, Case 11), and the High Command trial (Case 12)—​while crimes against humanity appeared as a charge in all twelve of the NMT’s cases.38 The very law that controlled the NMT signalled the shift. Control Council Law no. 10 (CCL 10) authorized Allied zonal courts (and some specially authorized German courts) to try former Nazis under much the same law used by the IMT. Although based on the London Charter and framed just as the IMT was entering its third month, CCL 10 nonetheless severed the nexus requirement that conditioned the justiciability of crimes against humanity to their link to crimes against peace.39 Why isn’t exactly clear. We might be tempted to say the change marked the final repudiation of the sentimental story of the state, as now the sovereign’s peacetime internal practices would be subject to international legal scrutiny. Yet it is unlikely 36  Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, London 1945 (US Government Printing Office 1949) 335. 37 See International Military Tribunal for the Far East:  Dissentient judgment of Radhabinod Pal (Sanyal 1953). 38  See Lawrence Douglas, ‘From IMT to NMT: The Emergence of a Jurisprudence of Atrocity’ in Kim C. Priemel and Alexa Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (Berghahn 2014). 39  For a full text of CCL 10, see Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials Under Control Council Law No. 10 (Washington:  US Government Printing Office, 1949), Appendix D.

65

Genocide and the Triumph of the Atrocity Paradigm

65

that CCL 10’s jettisoning of the nexus requirement represented such a dramatic change. Far more probably, a technical point of law played the decisive role: because the zonal occupiers were in fact acting as the sovereign government of Germany, Allied jurists viewed CCL 10 as akin to domestic German law. So while the IMT, as an international court, had no authority to penetrate into the pre-​war bowels of German sovereignty, the same limitation did not apply to zonal trials.40 That, in any case, is the closest thing we have as an explanation for the remarkable change. More to the point, the narrative of Nazi atrocity that emerged out of the successor trials differed quite dramatically from the IMT story. In the successor trials dedicated to addressing the crimes against the Jews—​most notably, the Einsatzgruppen trial—​SS exterminatory practices no longer appear as simply an extreme instance of the general horror of Nazi aggression. In the Einsatzgruppen trial, we begin to detect the lineaments of a distinctive trope in the historiography of the Holocaust—​that the extermination of European Jewry represented a crime sui generis, volatizing conventional categories of criminal wrongdoing and upending faith in the notion of historical progress.

Genocide and the Triumph of the Atrocity Paradigm The rapid development of the concept of genocide further stripped away the privileges of internal sovereignty secured in the sentimental story of the state. In a book published in 1944 called Axis Rule in Occupied Europe, Raphael Lemkin, a Polish-​ Jewish refugee working as a legal advisor to the US War Department, coined the term ‘genocide’ to describe the Nazis’ treatment of Jews in overrun countries. Wedding an ancient Greek word for group (genos) to a Latin word for killing (cide), Lemkin aimed to describe something distinct from mass murder: ‘a coordinated . . . destruction of the essential foundations of the life of . . . groups, with the aim of annihilating the groups themselves’.41 Lemkin’s tireless, even monomaniacal, agitations to popularize his new concept resulted in its rapid entry into general parlance. From the outset, however, Lemkin’s ambition was for genocide to serve not simply as a descriptive term but as a recognized crime in international law separate and distinct from crimes against humanity.42 This ambition found early success in the late summer of 1946—​before the IMT had even concluded and the NMT had begun—​in a trial staged before the Polish Supreme National Tribunal for trials of war criminals. There, Amon Göth, erstwhile commandant of the Kraków-​Płaszów concentration camp (and future icon of SS psychopathology thanks to Ralph Fiennes’ portrayal of him in Steven Spielberg’s Schindler’s List), was charged with the crime of genocide,

40 See M. Cherif Bassiouni, Crimes against Humanity:  Historical Evolution and Contemporary Application (Cambridge University Press 2014) 133–​46. 41  Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation—​Analysis of Government—​ Proposals for Redress (Washington DC 1944) 79. 42 See Douglas Irvin-​ Erickson, Raphael Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017).

6

66

The Rise of the Atrocity Paradigm

which prosecutors argued constituted a crimen læsæ humanitatis (a crime of offended humanity).43 Two years later, on 9 December 1948, the UN General Assembly voted to recognize genocide as an independent crime in international law. This is not the place to review in detail the shortcomings of that convention, which, among other problems, excluded, thanks to Soviet opposition, political groups from the list of possible victims of the crime; built a ‘specific intent’ requirement into the definition of the offence, vastly complicating the work of future international prosecutors; eliminated cultural genocide as one form of the crime; failed to create an international criminal court as a forum to try perpetrators; and refused to embrace universality as a principle of jurisdiction, meaning that domestic national courts of the offending nation were largely tasked with prosecuting perpetrators. More fruitfully, we might indulge the scepticism of the British delegates and ask what the Genocide Convention hoped to achieve that had not already been achieved with Nuremberg’s adumbration of ‘crimes against humanity’.44 By way of response, Lemkin argued that crimes against humanity, as a catch-​all category, ignored the crucial distinction between the indiscriminate bombing of unarmed civilians and the targeted elimination of Armenians or Jews. But the deeper insufficiency, Lemkin insisted, was that crimes against humanity required prosecutors to connect such crimes to crimes of aggression and war crimes. The irony here is that the driving impulse for the creation of genocide as an independent incrimination might have been based on a failure to comprehend the change to crimes against humanity already written into CCL 10. We’ve already observed that CCL 10, the Allied law that authorized zonal trials, eliminated the nexus requirement that limited the jurisdictional reach of the IMT. But because CCL 10 applied to occupied Germany, it was unclear whether the elimination represented a more radical redefinition of crimes against humanity or a local change to trials conducted on the territory of defeated German. The fact that plans to organize an international convention on crimes against humanity came to naught—​because, in part, it was believed that the concept had been settled at Nuremberg—​meant that the confusion remained. Indeed, a half-​century would pass before the International Criminal Tribunal for the former Yugoslavia (ICTY) finally resolved the matter, unambiguously severing the nexus requirement in its appellate decisions in the Tadić and Kunarac cases,45 an understanding endorsed by the Rome Statute of the ICC. The severing of the nexus requirement—​whenever that may have occurred—​ essentially obviated the strongest justification for making genocide a free-​standing incrimination, which given its other shortcomings—​its failure to protect political groups, its inclusion of the burdensome specific intent requirement—​has left many international jurists lamenting the day that it was ever recognized as the ‘crime of crimes’.46 Conceptually, however, the importance of the Genocide Convention 43  https://​www.phdn.org/​archives/​www.ess.uwe.ac.uk/​WCC/​goeth.htm. 44 Kuper, Genocide (n 28) 19. 45  http://​www.icty.org/​x/​cases/​kunarac/​acjug/​en/​kun-​aj020612e.pdf. 46  See William Schabas, Genocide in International Law: The Crime of Crimes (Cambridge University Press 2009).

67

Conclusion

67

cannot be gainsaid. By severing genocide from aggression, the Convention dramatically altered Nuremberg’s understanding of the Verbrecherstaat, as ‘crimes against peace’ loss their status as the foundational international offence. Conceptually, the Convention dramatically repudiated the sentimental story’s treatment of internal policing as a matter of sovereign prerogative; forthwith a sovereign’s targeting of its own population groups in peacetime constituted the ultimate international crime. Few bemoaned the short life and premature demise of the aggression paradigm. Of the issues that plagued Nuremberg’s recognition of crimes against peace, nullum crimen was the most easily addressed, for once Nuremberg was established as precedent, no future aggressor could claim to be the victim of retroactive law. Still, the need to generalize beyond the extreme case of Nazi Germany made for grave problems. In the early fifties, the International Law Commission, a body of international scholars and jurists convened by the UN General Assembly, tried without success to offer an adequate definition of aggression.47 So vexing was the effort—​Did wars of colonial liberation constitute aggression? What about fomenting civil strife in another country?—​that jurists found themselves vehemently arguing about whether a definition was possible or even necessary. In the early nineties, the UN established ad hoc criminal tribunals—​the first international criminal courts since Nuremberg and Tokyo—​to deal with atrocities in the Balkans and Rwanda; neither court included aggression as a justiciable crime. The statute of the ICC, the permanent institution meant to supplant the need for ad hoc UN tribunals, names aggression as a justiciable crime, but drafters specifically withheld the court’s jurisdiction until the continuing problem of definition could be solved. In 2010, after years of negotiation, jurists framed a seemingly workable definition.48 Although the ICC’s state parties recently activated the court’s jurisdiction, it is far from clear that the crime of aggression will ever play a meaningful role in the ICC’s caseload.49

Conclusion: Atrocity and the Unmooring of the Law of War Yet for all its vexations, the aggression paradigm enjoyed one clear advantage over the atrocity paradigm—​it had no problem accounting for the international character of the crime it named. By definition, crimes against peace were international in nature: they involved state-​on-​state warfare, the trespass of borders by foreign militaries. By contrast, the eclipse of the aggression paradigm severed international law’s core connection to the idea of the international. Whatever timeline we use to pinpoint this severance, the fact remains that the atrocity paradigm has eliminated

47  ‘Question of Defining Aggression’, UN Yearbook of the International Law Commission 1951, Vol 2, Report of the International Law Commission to the General Assembly, UN Document A/​1858, 131–​7. 48  See Resolution RC/​Res.6, Adopted at the 13th plenary meeting, on 11 June 2010, by consensus, https://​treaties.un.org/​doc/​source/​docs/​RC-​Res.6-​ENG.pdf. 49  See M. Weed, ‘International Criminal Court and the Rome Statute: 2010 Review Conference’ (10 March 2011) Congressional Research Service 7-​5700, R41682.

68

68

The Rise of the Atrocity Paradigm

the connection between international criminal law and purely international acts. Even the legal treatment of war crimes is now controlled by the jurisprudence of atrocity, as the ICTY’s landmark Tadić decision held that the justiciability of war crimes no longer depends on their commission in a strictly international conflict. 50 But if crimes of atrocity—​crimes against humanity, genocide, and war crimes committed in civil war—​need not be strictly international in character, what accounts for their status as international crimes? Answers to this question often issue in airy appeals to the common interests of mankind, the shocked conscience of humanity, and the universal values of civilization. A very different kind of answer was offered by Luis Ocampo, former chief prosecutor of the ICC, who justified international legal scrutiny of domestic atrocities in the Democratic Republic of Congo by invoking the spillover effect—​the idea that the domestic crimes of Lubanga threatened to create an international refugee crisis that could destabilize an entire region.51 No doubt Ocampo’s concern was justified, as we need look no further than Syria to see the profound capacity of civil war to send shudders around the globe. At the same time, the appeal to the spillover effect betrays a telling strain within the atrocity paradigm, as Ocampo’s words attempt to preserve some core understanding of international in a system that has rendered it largely meaningless. For would genocide be any less of an international crime in the absence of any demonstrable spillover effect? By severing international criminal law’s connection to a core concept of ‘international’, the rise of the atrocity paradigm has worked, as Schmitt once predicted, to render neutrality an indefensible position and to turn the enemy into the worst kind of criminal—​the hostis humani generis. In the fight against a perpetrator of genocide, ‘neutrality’ is an untenable position: at best, it represents cynicism; at worst, it is tantamount to aiding and abetting acts of mass murder. The perpetrator of such acts is no mere enemy to be militarily defeated; the perpetrator is an international pariah, who either must be annihilated or removed from power and delivered to a criminal tribunal. In this regard, the atrocity paradigm works to deconstruct the very distinction between external and internal and between war and policing that subtended the sentimental story. The NATO air war against the Federal Republic of Yugoslavia in the spring of 1999 offers a revealing illustration of this deconstruction. The war, as we recall, was launched without authorization by the UN Security Council, and thus arguably constituted a prohibited act of international aggression under the terms of the UN Charter. NATO, of course, argued that military action was necessary to put a halt to Serbian ethnic cleansing; this was a war of humanitarian intervention.52 Oxymoronic quality notwithstanding, the concept of humanitarian war represents 50  See Louis G. Maresca, ‘Case Analysis: The Prosecutor v. Tadic The Appellate Decision of the ICTY and Internal Violations of Humanitarian Law as International Crimes’ (1996) 9 Leiden Journal of International Law 219–​31. 51  O. Fiss, ‘Within Reach of the State’ and L. Moreno-​Ocampo, ‘Massive Crimes are Never Simply Domestic’ Boston Review, . 52  See Michael Ignatieff, Virtual War: Kosovo and Beyond (Picador 2001).

69

Conclusion

69

the stunning triumph of the atrocity paradigm over the aggression paradigm. Put somewhat tendentiously, it stands for the remarkable proposition that international law allows or even mandates international aggression as a response to domestic acts of atrocity.53 Was this, then, a war or a police action? Recall that in launching its air war against Serbia, NATO was not only accused of acting in violation of the UN Charter; it was also accused of having engaged in indiscriminate bombing, a war crime under the law of armed conflict. ICTY prosecutor Carla Del Ponte looked into the matter but never filed charges—​capitulating, some believed, to pressure from the very NATO nations that were principally footing the bill of her tribunal.54 My point is not to take sides in this controversy but to observe that NATO’s method of waging war was a predictable—​perhaps inevitable—​outcome of the triumph of the atrocity paradigm. NATO relied on high-​altitude bombing, a tactic designed to insulate its pilots from the risk of being shot down by surface-​to-​air missiles. Low altitude sorties would have reduced the risk to civilians on the ground but increased the risk to NATO pilots. Were NATO pilots obligated to assume that risk? The law of armed conflict answers, ‘yes’: the principles of distinction and discrimination that lie at the heart of the law of armed conflict obligate combatants to assume risks greater than those imposed on civilians. Wars of humanitarian intervention turn this calculus on its head.55 When war is waged not to protect a domestic national interest but to stop distant crimes, it is far from clear why the law of armed conflict and not the norms of policing should apply. At the very least, when military power is deployed to stop distant crimes, domestic support for such interventions will be thin, even if at first broad. Thin support means one thing—​that the domestic population of the intervenor will not tolerate the widespread loss of its soldiers. Philosophers may insist on the moral irrelevance of national boundaries and claim that saving our citizens from conquest by a foreign government should have no greater moral purchase upon us than saving foreign citizens from their own leaders.56 Still, the moral position of strict cosmopolitans finds little echo in realities on the ground. NATO’s decision to have its pilots drop their ordinance from a safe ceiling represented a concession to this powerful sentimental attachment to our own. But the point goes further still. The atrocity paradigms unsettles the very normative logic of the international law of war. Adversaries in an ‘ordinary’ international armed conflict are considered privileged combatants. The IMT’s aggression paradigm left in place the tenet that combatants fighting for a nation waging aggressive war nonetheless remain privileged, a view famously elaborated on by Michael 53  For a critical comment on this novel doctrine of intervention, see Tzvetan Todorow, ‘Right to Intervene or Duty to Assist?’ in Nicholas Owen (ed), Human Rights, Human Wrongs Oxford University Press 2002) 28–​48. 54  See Carla del Ponte, Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity (Other Press 2009). 55 Ignatieff, Virtual War (n 52). 56 See, eg, Simon Caney, Justice Beyond Borders:  A Global Political Theory (Oxford University Press 2006).

70

70

The Rise of the Atrocity Paradigm

Walzer in his insistence that jus ad bellum and jus in bello are logically and morally independent.57 But when war is waged to halt atrocities, our adversaries cease to be ordinary combatants. They are criminals, either actively perpetrating or aiding and abetting international crimes against their own subjects (or subjects of another state). And once the enemy is understood as a criminal, he ceases to enjoy the combatant’s privilege to lawfully resist our aggression. He has no more right to fire a weapon at our soldiers than does an ordinary murderer to shoot at the police, and has no more right to use violence against my interventions—​on his territory—​than does a common criminal to resist apprehension. The most basic distinction in the sentimental story of the state has been erased. War has become a tool of policing. This fact, in turn, threatens to erode the very principle of distinction that subtends the international law of armed conflict. If, for example, the criminal state committing acts of domestic atrocity enjoys great majoritarian support, it is far from clear why our soldiers should assume a greater risk of harm to themselves than that imposed on the citizens of the reprobate state.58 This observation should not be confused with the idea of collective punishment. At issue is what degree of risk our soldiers must assume when acting to save victims of a Verbrecherstaat. Indeed, the problem only becomes more vexing when we contemplate the risk that we should be willing to impose on those we are intervening to save. Here again it is far from clear that our soldiers should be obligated to assume a greater risk to themselves to spare those targeted for destruction by their own leaders. Consider debates about the failure of Allies to bomb the barracks and rail lines of Auschwitz.59 We know that the failure to do so had little to do with moral concerns and everything to do with indifference and cold logistical reasoning. Still, the moral issue is worth addressing. It seems neither crazy nor heinous to argue that the effort to save people from extermination does not require that we assume the kind of risk to ourselves that combatants typically must assume to protect civilians under the law of armed conflict. Imagine two scenarios. The first calls for our air force to bomb the barracks of a death camp. It is estimated that the bombing will kill many inmates but effectively put the death camp out of service, ultimately saving many. It is further estimated that the bombing raid will prove riskless to our pilots. The second calls for a special operations team to attack the death camp. This approach will also knock the camp out of operation, and will likely result in the death of far fewer inmates. But the peril to our soldiers is far greater; presumably some will die in the operation. The ordinary law of armed conflict strongly pushes us in the direction of the second approach. But does that, then, obligate us to adopt the second plan? Or more pointedly, does our choice of the first plan make us guilty of war crimes? I think not, and that,

57  Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (Basic, 5th edn, 2015). 58 See Paul Kahn, ‘The Paradox of Riskless War’, http://​digitalcommons.law.yale.edu/​cgi/​ viewcontent.cgi?article=1325&context=fss_​papers. 59  See Michael J. Neufeld and Michael Berenbaum (eds), The Bombing of Auschwitz: Should the Allies Have Attempted It? (St. Martin’s Press 2000).

71

Conclusion

71

indeed, is the point: the atrocity paradigm has radically destabilized the normative framework that supports the international law of war. Indeed, if we morally accept that the logic of humanitarian intervention allows us to bomb the barracks, we have reached a profoundly paradoxical result. Not only does the atrocity paradigm authorize us to engage in aggression; it arguably also authorizes us to engage in actions that in other contexts would constitute war crimes. This paradoxical result may be the most unsettling upshot of the law’s efforts to master the challenges of the Verbrecherstaat. It is almost enough to make one feel nostalgia for the sentimental story.

72

5 International Criminal Justice History Writing as Anachronism The Past that Did Not Lead to the Present Frédéric Mégret

The peculiar genre of history writing by international criminal lawyers1 undeniably serves a function. One would want and indeed expect international criminal lawyers to have a historical awareness of their discipline. In fact international criminal law barely existed as a discipline that it had developed a certain sense of its own history.2 In a sense, the project of international criminal justice has always been a profoundly historical or at least historicizing one even at its very beginning, harnessing its initially timid legacy to perfecting the civilization of international law. In fact, the project’s malleability and dynamism make it great material a priori for history writing, at least of the shallow narrative kind. This sort of routine historicization serves a purpose for various participants in international criminal justice eager to put themselves up to date on a century-​and-​a-​half of developments. It provides a ready-​made road map of where the discipline comes from, which is held up as a key to its present. The standard lawyers’ introductions in this context provide a relatively breezy bird’s eye view of the major events, with a strong emphasis, as befits a practical and progressist profession, on conventional and institutional innovations. Yet it is true that the genre may occasionally appear a little suspicious. Written by lawyers writing as lawyers rather than historians (although ambiguously claiming a 1  In truth, historical research on international criminal justice remains poor, and international criminal lawyers for the most part only give passing thought to the historical dimensions of their discipline. I have in mind here the standard introductions to the field, either in textbooks on in journal articles. Good examples include the work by Cherif Bassiouni. See M. Cherif Bassiouni, ‘From Versailles to Rwanda in Seventy-​Five Years:  The Need to Establish a Permanent International Criminal Court’ (1997) 10 Harvard Human Rights Journal 11; M.C. Bassiouni, ‘Establishing an International Criminal Court: Historical Survey’ (1995) 149 Military Law Review 49; M. Cherif Bassiouni, ‘The International Criminal Court in Historical Context’ [1999] St. Louis-​Warsaw Transatlantic LJ 55. See also Colleen R. Donovan, ‘The History and Possible Future of International Criminal Law Note’ (1987) 13 Brooklyn Journal of International Law 83; William Schabas, An Introduction to the International Criminal Court (Cambridge University Press 2001) ­chapter 1. 2  Historical Survey of the Question of International Criminal Jurisdiction—​Memorandum submitted by the Secretary-​General, A/​CN.4/​7/​Rev.1, 1949. International Criminal Justice History Writing as Anachronism: The Past that Did Not Lead to the Present. Frédéric Mégret. © Frédéric Mégret, 2019. Published 2019 by Oxford University Press.

73

History Writing as Anachronism

73

certain authority as historiens du dimanche in the process), there is a risk that this sort of narrativization will at best not be sufficiently receptive to an infinity of dissonances that do not fit the prevailing narrative; at worst, be beholden to the normative enterprise that it seeks to describe. Rather than the pursuit of historical research for its own sake or at least for the sake of the advancement of a richly contextualized understanding of how international criminal justice was historically conditioned, histories of international criminal justice may appear self-​serving or at least too focused on the prize (whatever that may be) to do much justice to the past. They require one to not look too closely at the contradictions and tensions that the narrative glosses over. In that respect, there is of course no reason to think that international criminal lawyers have been poorer historians than international lawyers generally. But the rush to solidify international criminal justice may have led to a certain liberality in shortcuts. To the extent that ‘The answers we receive from history are dependent on the questions we pose—​those questions, again, being dependent on our present projects, our understandings and pre-​understandings, including where we believe the present is leading us now’,3 then the questions asked by international criminal lawyers have certainly evidenced a tendency to seek validation in the past. They have been less interested, in particular, in asking questions about what those loosely associated with international criminal law in earlier eras were really interested in, which presumably was not merely an early signalling function for developments down the road. The early discipline of international criminal law in this respect is not just a presage of what came, nor early international criminal lawyers merely oracles of what was to be. To the extent that there is a genre, then, one might characterize it as potentially guilty of two sins: on the one hand, that of being too keen to emphasize breaks, at the expense of actual continuities when the past is perceived as problematic; or, conversely, so focused on continuities that it neglects discreet but fundamental breaks. To begin with the first, the discipline has a tendency to magnify discontinuities that are not as radical as they are presented to be. For example, classically a considerable leap is posited between the ‘victors’ justice’ of Nuremberg and Tokyo, the ad hoc but institutionalized and juridified creation of the  International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), and the proposed permanence and aspirationally universal character of the International Criminal Court (ICC). Although it is not the purpose of this chapter, one line of thought has by contrast long emphasized the continuity of politics as the operative framework for all these international tribunals. For example, one might point out the continued and pivotal role of the Security Council as an incarnation of power whose influence stretches all the way to the ICC. Another classic of the narrative is that international criminal justice could not emerge in an earlier international system excessively dominated by state sovereignty

3  Ronald W. Zweig, German Reparations and the Jewish World: A History of the Claims Conference (Psychology Press 2001).

74

74

History Writing as Anachronism

but that the relative decline of sovereignty in an age of human rights has made the creation of the ICC all but inevitable; often such narratives do a poor job of defining sovereignty or offer only a cursory understanding of how sovereignty is and has long been compatible with all kinds of compromises. More importantly, they may fail to omit the extent to which reinforcing the power of the criminal law is not exactly an anti-​sovereign move, or how international criminal law serves to constitute sovereignty as the legitimate locus for the enforcement of crucial values. This is not to mention the possibility that international criminal justice greatly enhances the sovereignty of at least some states.4 The emphasis on supposedly radical breaks extends to technical-​doctrinal devices that in fact display a remarkable degree of continuity. For example, even in recent history, the contrast between ad hoc international criminal tribunals based on ‘primacy’ and an ICC based on ‘complementarity’ hides a much more complex reality where the former have sought to be complementary despite the possibility of asserting primacy, and the latter has sought to exercise primacy despite the obligation to defer to complementarity.5 Moreover, complementarity is hardly a new device, but one that continues a much older tradition of finding domestic jurisdictions of foreign states wanting in various ways.6 On the other hand, and this will be the core focus of this chapter, the discipline has a tendency to gloss over a range of discreet discontinuities that are at least if not more important to understanding the dynamics of international criminal justice. In fact, on balance, the emphasis on continuity is probably more prevalent and runs deeper than the insistence on breaks. There is much to be gained, it seems, by claiming that international criminal justice operates as a continuous process. The dominant narrative is one in which every development somehow leads to subsequent ones. The whole enterprise gladly gives itself an air of discreet ineluctability. It may be that, as a vaguely controversial and utopian discipline, international criminal law forever seeks to reinforce its pedigree. Contra those who claim that it proposes to overturn fundamental tenets of the international legal order, apostles for the project are keen to ‘deradicalize’ it and emphasize how modern developments draw on significant precedents. In doing so, they often emphasize the extent to which every development is somehow ‘mandated’ if not by the law at least by previous experiments in international criminal justice. The risk, however, is that one will confuse the outcome and its cause or ascribe to the law a much more causal role than it has had.7 To illustrate, a classic confusion seeks to derive from the political, highly contingent decision to create international 4  Frédéric Mégret, ‘The Politics of International Criminal Justice’ (2002) 13 European Journal of International Law 1261. 5  M.M. El Zeidy, ‘From Primacy to Complementarity and Backwards: (Re)-​Visiting Rule 11 Bis of the Ad Hoc Tribunals’ (2008) 57 International and Comparative Law Quarterly 403. 6  Frédéric Mégret, ‘Qu’est-​ce qu’une juridiction incapable ou manquant de volonte au sens de l’article 17 du traite de rome-​quelques enseignements tires des theories du deni de justice en droit international’ (2004) 17 Revue quebecoise de droit international 185. 7  Frédéric Mégret, ‘Nuremberg and the Contemporary Commitment to International Criminal Justice’, https://​voelkerrechtsblog.org/​nuremberg-​and-​the-​contemporary-​commitment-​to-​ international-​criminal-​justice/​.

75

History Writing as Anachronism

75

criminal tribunals, a validation of the principle that international criminal tribunals ought to be created (tribunals are created because they legally ought to be created). We have every reason to believe, however, that the Allies created the Nuremberg and Tokyo tribunals with extremely little thought about consolidating a movement of international criminal justice, let alone a sense of normative obligation to create international criminal jurisdictions. Both tribunals were possibilities among many that were chosen based on a range of goals that the Allies had set themselves during after the war; not—​except in hindsight and with significant violence to what happened—​the first steps towards universal international criminal justice. It is thus important not to read too much law into opportunistic moments. A somewhat similar fallacy resurfaced on the occasion of the creation of the ad hoc international criminal tribunals in the early 1990s. Although international lawyers repeat without a fault that the tribunals were created to remedy ‘a breach of international peace and security’, this confuses the formal modality of their creation for the actual reasons why they were created. A Chapter VII resolution by the Security Council was one opportune way to set up the tribunals whose creation was decided for other reasons that need to be prodded independently and in all their complexity. There was certainly no compulsion to create the ad hoc international criminal tribunals merely because a threat to international peace and security had been found to exist in the relevant contexts. That every international criminal tribunal has sought to reinvent itself as more than the crass political compromises that led to it is understandable but good history does not make. The risk if one takes those narratives too seriously is that one will make the history of the discipline much more seamless than it probably is. The narrative of linearity often ends up retaining only the most superficial aspects of past developments in order to serve modern projects. One reason why the illusion of the ‘past’ is strong is because it is based on a certain reality, that of a semantic continuum throughout the twentieth century. The optical illusion involved is often as simple as thinking that just because lawyers were referring to things that ‘had the same name’, they must have been talking about the same thing. For example, nineteenth-​century lawyers writing on universal jurisdiction over acts of piracy, inter-​war lawyers mobilizing for a peace and terrorism international criminal court, or the diplomats who built the cardinal offences prosecuted at Nuremberg surely were dealing with the same fundamental notions of, respectively, ‘universal jurisdiction’, international criminal tribunals, and even international crimes. The baggage of the past can then be more or less unproblematically imported into a present all the more ripe with possibilities that it is rich with that heritage. It is true that international and criminal lawyers have been speaking about international criminal law and international criminal courts and international criminal responsibility for at least a century if not much more. But remaining at the level of this semantic familiarity often involves a presentist fallacy; that is, it does not take the past on its own terms. Similarities in naming do provide a clue and can end up constituting their own marginal reality, but it is merely a clue about the possibility of conversation across time that needs to be duly investigated. More plausibly, false continuums will involve the abundant and incautious use of anachronisms, seeing

76

76

History Writing as Anachronism

past developments not in their context as embedded fragments but as earlier versions of what would eventually become. The anachronisms in this chapter’s title thus arise as the insertion of contemporary categorizations into earlier debates, and the tendency to mix extra-​contemporaneous ideas and events without paying attention to their temporal setting. They are part of a broader and problematic tendency that has been remarked by professional historians, of reading the laws of war, for example, into past events that are not easily amenable to such an analysis.8 International legal method has been described by Anne Orford as ‘necessarily anachronistic’. Where ‘the self-​imposed task of today’s contextualist historians is to think about concepts in their proper time and place—​the task of international lawyers is to think about how concepts move across time and space’.9 This is no doubt true when it comes to international legal method, but histories written by international criminal lawyers do claim to be and must be judged on historical grounds. In that respect, histories of international criminal law by lawyers often come close to legalizing history, seeing it as the autonomous evolution of legal form through time. Yet one cannot have it both ways: claiming the authority of international law’s own a-​synchronous approach to time even as one is effectively engaging in history writing; or, put slightly differently, one cannot claim to appose the seal of the law’s majesty on what is merely history-​lite for the purposes of serving a project. Anachronization of this sort—​in quasi-​social scientific scholarship rather than as a rhetorical argumentative strategy in the midst of law making—​is problematic. It involves an instrumentalist recasting of the past as, in the case that interests us, more conducive to the present than it can realistically be argued to have been. It leads to an intellectual history of international criminal justice that is too ‘flat’ in that it weaves together the disparate, or at least too naturalistic in that it reimagines the history of the discipline as a neat learning process, and certainly too universalistic in that it minimizes the importance of time and space. This is not an invitation to a purely historicist reading of international law—​for as a broader reflective social project international law must surely at least invite the risk of informed anachronism—​but it is at an invitation to ponder one’s anachronisms, and not to be fooled by them. It is to both highlighting these discontinuities and the narrative forms that persistently obscure them that this chapter is devoted. Revisionist international criminal law scholarship has already begun the work of delicately tilting some historical sacred cows from their pedestals, pedestals from which they had always been precariously hanging anyhow.10 In particular, I suggest three major tensions in the history of international criminal law that have tended to be glossed over by dominant 8  Christopher Warren, ‘Henry V, Anachronism and the History of International Law’ in Lorna Hutson (ed), The Oxford Handbook of English Law and Literature, 1500–​1700 (Oxford University Press 2017). 9  Anne Orford, ‘The Past as Law or History? The Relevance of Imperialism for Modern International Law’ (Social Science Research Network 2011) SSRN Scholarly Paper ID 2090434, https://​papers.ssrn. com/​abstract=2090434. 10  See in particular the excellent Gregory S. Gordon, ‘The Trial of Peter Von Hagenbach: Reconciling History, Historiography, and International Criminal Law’ in K.J. Heller and G. Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press 2013).

7

Droit pénal international v droit international pénal

77

historiographies and significantly complicate narratives of continuity: (i) between a vision of international criminal law as the transnational project of criminal law or the criminalization of public international law, (ii) between visions focused of criminal responsibility as based on the state or the individual, and (iii) between an emphasis on ‘peace’ or ‘atrocities’. In presenting those I do not make the claim that international criminal lawyers are unaware of them, merely that they are inclined to treat them as part of a nonetheless overarchingly continuous development rather than a dialectical process of contradictions that potentially destabilizes our understanding of the proper boundaries of international criminal justice. In each case, I suggest a similar pattern in which international criminal justice is presented as something quite narrow that is largely oblivious to its past, or invokes that past only to be oblivious to its contradictory nature. In each case, moreover, some crucial dimension of what once counted as international criminal justice is marginalized in the present, even as the ‘repressed’ part of the dialectic continues to exist in the background. The chapter thus hopes to be a contribution to the problematization of ‘international criminal justice’ as a historically contingent enterprise, one whose very contours are the subject of ongoing contestation, and whose historiographical pendulum swings too much in one direction only at the risk of ignoring significant dimensions of its reality. In the debate between historicism and presentism as it affects the study of international law, it argues for an approach that acknowledges the relevance of past developments for understanding the present but requires that these developments’ difference be duly recognized for what it is.

Droit pénal international v droit international pénal Although the discipline is on a certain level very much aware that its origins combine a more decentralized, transnational, and cooperative element (droit pénal international) with a more centralized, supranational, and integrative dimension (droit international pénal),11 the ‘destiny’ of international criminal justice is one that is understood as clearly leading from the former to the latter. Over time, international criminal justice becomes merely its most institutionalized and centralized self, culminating with the ICC prosecuting the ‘gravest’ ‘core crimes’. The past, then, is interrogated constantly with a view to highlighting early clues of international criminal law’s cosmopolitan tendencies at the cost of negating and minimizing alternative paradigms, including as they arguably continue to significantly influence the face of international criminal justice. The resulting vision of international criminal justice is one that is surprisingly narrow, both substantively and jurisdictionally. Substantively, the discipline has indeed become highly focused on ‘core crimes’, understood as genocide, crimes against humanity, war crimes, and (at best) aggression. The history of the discipline, then, is largely constructed as the history of these

11  Didier Rebut, Droit pénal international (Dalloz 2014); Diane Bernard, Trois propositions pour une théorie du droit international pénal (Publications Fac St Louis 2014).

78

78

History Writing as Anachronism

offences and their increasingly central role. If not ‘core crimes’ the focus is on ‘true’ international crimes that are opposed to a number of less grave transnational or, implicitly, ‘not truly international’ crimes. International criminal law is conceived as that discipline that prosecutes the gravest crimes, those that ‘shock the conscience of mankind’. Perhaps more significantly, the discipline is seen as being primarily about the criminal component of public international law, rather than the broader internationalization of the criminal law. The discipline then tends to take it for granted that international criminal law is indeed this rarefied discipline invoking the global conscience. Looking back in time, one may seek out those early telltale signs of the advent of what was to be (or what is perceived as being). For example, contemporary international criminal lawyers will emphasize the direct lineage between the Martens clause and contemporary ideas about crimes against humanity, as if the two were easily collapsible and even though the idea of an international criminal court prosecuting heads of states irrespective of any immunity for crimes committed domestically against their own nationals could not have been further from what even a progressist Russian diplomat in the late nineteenth century intended. Or they will highlight the effort to try Kaiser Wilhelm as one of the origins of the Nuremberg trial, even though that effort (doomed as it was) sought quite different goals and relied on quite distinct conceptual foundations. In the process, they may sideline or neglect a range of developments or controversies that do not fit within this narrow paradigm but nonetheless were once considered to be largely part of the constitution of international criminal justice in the making. In fact, the notion of what constitute ‘true’ international crimes is highly problematic, even on its own doctrinal terms. Historically, it risks blinding us to the reality that debates on international criminal law have long been about a range of other offences. Every era has tended to be focused on ‘its’ defining crime, in ways that reflect quite radically different visions of the international legal order. Minimizing the extent to which these emblematic crimes are also part of the history of international criminal law even as they entail quite different historical projects risks impoverishing and depoliticizing international criminal legal history. As it happens, seen as part of an at least century long history of evolving ideas about international criminal law, the focus on ‘core crimes’ and permanent international criminal tribunals is all but evident and, in fact, quite anomalous. In 1989, when Trinidad and Tobago insisted that the question of an international criminal jurisdiction be put back on the agenda of the General Assembly in order to fight drug trafficking it had clearly, it turns out, miscalculated the times. Many pointed out subsequently that ‘treaty crimes’ as they had by then become somewhat obscurely known, were not truly international crimes or at least not worthy of the jurisdiction of the ICC. In fact, however, the transnational element has if anything historically been dominant in prompting calls for the development of international criminal institutions. The early discipline of international criminal law was, with few exceptions, much more focused on repressing transnational crime and much less clear about those not actually being international crimes properly so called. That particular genealogy runs from the slave trade, to drug trafficking, to la traite des blanches. To those one should add concerns with breach of blockade, carriage

79

Droit pénal international v droit international pénal

79

of contraband, the manufacturing of false currencies, or the severing of submarine telegraph cables. All of these shared a border-​transcending element that recommended them for international regulation. None of them were particularly political crimes although they could no doubt have an impact on international peace and security. They involved dreams of cooperation over transnational criminal matters that would enhance the civilizing mission of international law. Early international criminal lawyers were much less dogmatic about whether the resulting international criminal law was truly international criminal law or merely part of international efforts at organizing a coordinated criminal repression. In addition, terrorism also occupied, throughout the twentieth century, an almost more central place than the late attention to crimes against humanity and genocide, or even war crimes. Today, there is plenty of doctrinal doubt about whether terrorism is actually an ‘international crime’12 but in practice in the 1930s, in the 1960s and 1970s, and increasingly after 9/​11, the international criminalization of terrorism has long been a central goal of the international community, prompting calls for international jurisdictions and generating considerable amounts of actual criminal cooperation.13 As late as the 1990s, the Lockerbie trial showed that highly original sui generis jurisdictional arrangements might be necessary to address the problem.14 To write out global efforts at defining, criminalizing, and prosecuting ‘terrorism’ as not part of what international criminal justice is about. The ambiguity as to what should be the central task and therefore defining feature of international criminal justice extends to the very mechanisms by which it is to be implemented. Given the existence of the ICC, it is tempting to read the vast movement of international criminal justice as a movement of centralization towards the creation of a permanent international criminal jurisdiction.15 The growing importance of international criminal tribunals in the last twenty years and their ability to channel fantasies about the rule of international criminal law, however, can lead one to overemphasize their importance. It is certainly true that ideas for an ICC have been voiced for a long time but it is also true that such a court was always about a much broader range of issues ranging from international judicial cooperation to universal jurisdiction.16 And although it has become de rigueur to describe Nuremberg and Tokyo as the first international criminal tribunals, contemporaries were much more sceptical about their truly international nature.17

12  Michael Lawless, ‘Terrorism: An International Crime’ (2007) 63 International Journal 139. 13 M. Cherif Bassiouni, International Terrorism:  Multilateral Conventions, 1937–​ 2001, vol 5 (Martinus Nijhoff 2001). 14  David R. Andrews, ‘A Thorn on the Tulip-​A Scottish Trial in the Netherlands: The Story Behind the Lockerbie Trial’ (2004) 36 Case Western Reserve Journal of International Law 307. 15  M. Cherif Bassiouni, ‘The International Criminal Court in Historical Context’ (1999) 1999 Saint Louis-​Warsaw Transatlantic Law Journal 55. 16  Frédéric Mégret, ‘Henri Donnedieu de Vabres:  Penal Liberal, Moderate Internationalist and Nuremberg Judge’ in Immi Tallgren and Frédéric Mégret (eds), The Dawn of the Discipline: International Criminal Justice and its Early Exponents (Cambridge University Press 2019). 17  H. Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law’ (1947) 1 International Law Quarterly 153.

80

80

History Writing as Anachronism

Moreover, the role to be occupied by international criminal tribunals within what would become international criminal justice was also the object of complex debates that are in some ways at odds with today’s consensus. The contemporary consensus, shaped by the advent of the ICC, is that international criminal courts are justified only to the extent that they are complementary to domestic courts and therefore act as correctives to the latter’s failings. Yet even the idea of ‘impunity’ as a theme in the literature on international criminal law appears very recently, so that the idea that international criminal justice is the culmination of a long effort against ‘impunity’ is quite anachronistic. Authors in the interwar years or during the Cold War were not particularly fixated with impunity and, in fact, understood far better—​or at least very differently—​that the existence of international criminal tribunals could be justified for a much wider set of reasons. The sort of vision involved was strikingly different from the one that began to emerge in the 1990s. For example, it was long thought in the interwar years that international criminal tribunals’ key function would be to mediate jurisdictional disputes between states, rather than prosecute individuals themselves. Quite simply, the existence of notable fugitives might create a conflict of jurisdiction between several states. Alternatively, domestic courts might not respect the rights of the accused in satisfying ways or at least lack the necessary impartiality when it came to high profile cases. Some arguments were almost aesthetically international and had to do with the simple idea that international law would best be developed by international courts, or even that there was a higher symbolic interest in international law being rendered at least in part by centralized international institutions.18 A good example of how these earlier ideas are sidelined and ignored is in discussions of the Nuremberg tribunal. Contemporary international criminal lawyers often only remember of Nuremberg what suits them, seeing it as the beginning of the advent of international criminal justice. Yet it is often a neglected facet of the tribunal’s creation that it was justified specifically in terms of the crimes of certain ‘great criminals’ having no particular geographic location. This raised a real and concrete problem for the Allies, who ran the risk of leading Nazis being prosecuted by whoever happened to have arrested them first. It is only later that the Nuremberg tribunal would rationalize itself and be rationalized as a tribunal speaking for humanity, but the idea of having an international criminal tribunal also responded to a much more pedestrian concern. Notably, a similar slip is involved with debates on universal jurisdiction. In discussions of how universal jurisdiction emerged to fight piracy and was eventually extended to war crimes, a certain continuity is imagined. Both types of crimes are united, it seems, by the fact that they ‘shock the conscience of mankind’. In practice, however, the inspiration for resort to universal jurisdiction varied fundamentally in both cases. Universal jurisdiction in the case of piracy was first and foremost a response to the problem of absence of jurisdiction on the high seas, and an attempt to tighten what might otherwise have been a legal loophole. The emphasis 18  Frédéric Mégret, ‘The Case against Complementarity’ in Carsten Stahn and M. El Zeidy (eds), The International Criminal Court: From Theory to Practice (Cambridge University Press, 2nd edn, 2018).

81

State v Individual Criminal Responsibility

81

on suppressing the slave trade already drew on the piracy analogy but in ways that were quite opportunistic and not simply a natural extension of the protection of the freedom of the High Seas. By the time universal jurisdiction was associated with war crimes or torture, what was originally merely rhetorical flourish (that certain crimes ‘shock the conscience’) was turned on its head and made into an autonomous basis for universal jurisdiction.19 In short, both substantively and jurisdictionally, the transition from a transnational law of criminal cooperation between states to a supranational criminal law manifesting fundamental values above sovereigns is both more central and more problematic to the constitution of the discipline than understood in conventional historiographies.

State v Individual Criminal Responsibility International criminal law is almost compulsively identified as the branch of international law based on individual criminal responsibility; in fact the branch of international law that has made the individual enter the mainstream of international law. This involves reading back the history of ‘international criminal justice’ with a view to identifying early traces of individual responsibility under international criminal law. For example, the trial of Von Hagenbach is a favourite of international criminal law writing, seemingly extending the origins of the individual responsibility all the way to the Middle Ages.20 After the First World War, the focus is on the failed attempt to try Kaiser Wilhelm and the Leipzig trials. Nuremberg and Tokyo are remembered primarily as the trials that formalized and confirmed international criminal law’s individualist bias. The famous Nuremberg dictum that ‘crimes against international law are committed by men, not by abstract entities’ is then seen as having unproblematically heralded the supremacy of individual criminal responsibility. The reality, however, is much more complex and ambiguous. Theoretically, there is no reason why international criminal law should be exclusively or even primarily focused on individuals, and to believe that this is the only possible outcome may involve reading into the project something that arguably was not there, at least prominently, from the beginning. In fact, it may exclude from the historicization of international criminal justice a whole range of debates on ‘state criminality’ that were in fact quite central to international criminal justice’s intellectual development and not just as a ‘road not taken’. The Nuremberg dictum, for one, is often decontextualized and should be taken with a grain of salt: it was not meant to exclude any form of state and collective criminal responsibility as much as to deny senior Nazis the ability to blame all their acts on the orders of their sovereign.

19  Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’ (2004) 45 Harvard International Law Journal 183. 20  Edoardo Greppi, ‘The Evolution of Individual Criminal Responsibility under International Law’ (1999) 81 Revue Internationale de la Croix-​Rouge/​International Review of the Red Cross 531.

82

82

History Writing as Anachronism

Clearly, in fact, participation in the crimes of the German state was not seen as secondary by the artisans of the Nuremberg tribunal who repeatedly emphasized the responsibility of Germany. Moreover, the simplicity of the dictum belies the range of controversies that had to be temporarily quieted for the question of state or collective criminal responsibility to be overshadowed.21 For example, the fate of the ‘act of state’ doctrine in the context of international crimes was never fully or properly resolved, which explains its occasional contemporary resurgence.22 The post-​Nuremberg emphasis the German state’s responsibility23 as well as countless efforts then24 and since25 to engage the responsibility of various corporations help problematize the contingent and circumstantial character of the Allied decision to focus on individual responsibility. The decision to focus on individuals at the trial that should probably be understood less as taking a final position on a fraught issue than taking a strategic stance on a particular conflict and a particular regime, that still left plenty of place for concurrent and overlapping responsibilities.26 The dominant narrative somehow identifies Nuremberg and Tokyo as an attempt to correct the errors of the Versailles settlement and its focus on ‘punitive’ state responsibility, understood as having punished an entire collectivity. There is no doubt that reparations were pursued aggressively after the First World War, but this does not mean that it is clear that the legacy of Versailles is unambiguously that collectives cannot be responsible. At times, the argument is framed as the purely utilitarian one of results (collective punishment weakened Weimar and led to Nazism), and at times as a more principled one (state criminal responsibility is a form of prohibited collective punishment). But the evidence that the Versailles precedent featured prominently in the discussions before Nuremberg is scarce. Moreover, the decision to focus on individual Nazis may have had much to do with the ‘larger than life’ role that many had in the implementation of war and genocide rather than a principled commitment to the idea that only individuals could ever be the subjects of international criminal law. In fact, the effort to reinterpret Nuremberg’s own past in view of a long-​term narrative of individual responsibility fares even less well. If one looks at the common treatment of the aftermath of the First World War from the perspective of the aftermath of the Second World War, the focus on Kaiser Wilhelm and the Leipzig trials is highly problematic. The failure of those trials is not simply attributable to political 21  Hans Kelsen, ‘Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals’ (1942) 31 California Law Review 533. 22  R. Maison and C. Leben, La Responsabilité Individuelle Pour Crime d’État En Droit International Public (Bruylant 2004). 23  Ronald W. Zweig, German Reparations and the Jewish World: A History of the Claims Conference (Psychology Press 2001). 24  Jonathan A. Bush, ‘The Prehistory of Corporations and Conspiracy in International Criminal Law: What Nuremberg Really Said Essay’ (2009) 109 Columbia Law Review 1094. 25  Annika Van Baar and Wim Huisman, ‘The Oven Builders of The HolocaustA Case Study of Corporate Complicity in International Crimes’ (2012) 52 The British Journal of Criminology 1033. 26  Neil Boister, ‘The Application of Collective and Comprehensive Criminal Responsibility for Aggression at the Tokyo International Military Tribunal: The Measure of the Crime of Aggression?’ (2010) 8 Journal of International Criminal Justice 425.

83

State v Individual Criminal Responsibility

83

unwillingness to prosecute those responsible but also to the clearly collective framing of responsibility at Versailles, a framing that was in tension with the simultaneous emphasis on individual responsibility. Although that collective responsibility was not primarily criminal, it clearly included punitive aspects. There was significant sympathy at the time for the idea that ‘acts which provoked the world wars should not be charged against their authors and made the subject of proceedings before a tribunal’.27 In fact, the Commission on Responsibilities explicitly feared that this would lead to an impoverished historiography: ‘any inquiry into the authorship of the war must, to be exhaustive, extend over events that have happened during many years in different European countries, and must raise many difficult and complex problems which might be more fitly investigated by historians and statement than by a tribunal appropriate to the trial of offenders against the laws and customs of war’.28 At its beginnings, in fact, and largely as a result of its focus on crimes against peace, international criminal justice was almost entirely about state responsibility understood as responsibility for not enforcing international criminal law or even state responsibility for actually committing international crimes. Leading international criminal lawyers of the interwar period such as Henri Donnedieu de Vabres,29 Vespasien Pella,30 or Quintiliano Saldaña31 all took as evident that if there was to be an international criminal law at all, it would be one that applied to the state as its main subject. These definitely had their contradictors, in the person for example of Nicola Politis who advocated for individual responsibility, but the point seems to be that the view of the state as the primary and necessary subject of international criminal law was evident. Of course, a project of international criminal law primarily focused on the state is one that bears little resemblance to one almost exclusively focused on the individual. If one now turns to the debate after the Second World War, the prevailing historiography of international criminal law again tends to exclude a large swathe of the history of international law from its ambit. Most textbooks on international criminal law hardly devote any space to the lengthy International Law Commission (ILC) debates on what became known as ‘aggravated’ state responsibility but was for a long time analysed as ‘crimes of state’,32 as if it were evident that these were not part of the intellectual development and pedigree of the discipline. It is true that the idea of state crimes was addressed within the ILC confines as part of the larger issue of state responsibility, but one would have thought that the links to a sort of meta-​discipline of international criminal law would be obvious. This is a 27  Report, Preliminary Peace Conference of 29 March 1919. 28 Ibid. 29  Henri Donnedieu de Vabres, Les Principes modernes du droit pénal international (Librairie du Recueil Sirey 1928). 30  Vespasien V. Pella, La criminalité collective des états et le droit pénal de l’avenir (Imprimerie de l’État 1925). 31  Ignacio De la Rasilla del Moral, ‘The Silver Age of International Law in Spain and the Mysterious Death of Quintiliano Saldana’ in Tallgren and Mégret (eds), The Dawn of the Discipline (n 16). 32  Joseph H. Weiler, Antonio Cassese, and Marina Spinedi, International Crimes of State: A Critical Analysis of the ILC’s Draft Article 19 on State Responsibility, vol 10 (Walter de Gruyter 1989).

84

84

History Writing as Anachronism

problematic elision if only because it makes it difficult to understand why and when the scales tipped more lastingly—​as they de facto did, although almost by default—​ towards individual criminal responsibility and the eventual (albeit partial)33 ‘de-​ criminalization’ of state responsibility. Hidden by the possible framing of the history of international criminal law as the increasingly unbalanced dialectics of state and individual responsibility, is the extent to which the focus on the latter may also be part of a process of switching blame on non-​state actors. Individual responsibility is often presented as a radically anti-​sovereign project. That it may be, to the extent that international criminal law is indeed deployed against agents of the state. But once international criminal law has been unmoored from a defining focus on the state as such, there is no doubt that it can be directed at a range of individuals, some more typically associated with non-​state actors than the state. Which one specifically, then, makes a considerable and not just anecdotal difference to the ideological content of the project. On the one hand, a project mostly focused on state agents, as the Nuremberg and Tokyo tribunals were, can be seen as participating in a sort of cosmopolitan anti-​sovereign mystique shared with much of the historical project of human rights; on the other hand, a project that is increasingly focused on ‘disciplining’ non-​state actors for their crimes, whether as ‘pirates’, ‘terrorists’, or, increasingly, authors à part entière signals much more than a subtle inflection in the overall trajectory of international criminal law, a radical turnaround of the project.34 The failure to appreciate the richness of debates on the relationship between collective and individual responsibility has arguably led international criminal justice into a series of conceptual dead ends in which individuals, acting ‘on their own’ as it were and entirely dissociated from collectives, are seen as capable of having singly committed international crimes. Although this development has been justly criticized doctrinally35 and theoretically,36 it is less often identified as the result of simplistic historicization, a historicization that infers from the particular course that legal institutions have taken the inevitability of that course. History writing, in this respect, can, in addition to being incomplete, be misleading and unhelpful.

33 Frédéric Mégret, ‘Le Renouveau de La Notion de Crime d’Etat Devant La Cour Inter-​ Américaine: San José Reprend Le Flambeau Abandonné à Genève et Négligé à La Haye?’ in Hélène Trigoudja and Ludovic Hennebel (eds), Le particularisme interaméricain des droits de l’homme (Pedone 2009). 34  Frédéric Mégret, ‘Is the ICC Focusing Too Much on Non-​State Actors?’ in Margaret de Guzman and Diane Marie Amann (eds), Mélanges in Honor of Bill Schabas, Arcs of Justice (Oxford University Press 2015). 35  Notably by Bill Schabas. See William A. Schabas, ‘State Policy as an Element of International Crimes’ (2008) The Journal of Criminal Law and Criminology 953; William A. Schabas, ‘Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes’ (2010) 23 Leiden Journal of International Law 847. 36  Larry Cata Backer, ‘The Fuhrer Principle of International Law: Individual Responsibility and Collective Punishment’ (2002) 21 Penn State International Law Review 509.

85

Peace v Atrocity Tribunals

85

Peace v Atrocity Tribunals A third way in which the narrative of mainstream international criminal justice history writing excessively emphasizes continuity at the expense of deep inflections is through a mistaken sense of the fundamental underlying purposes of international criminal justice. International criminal law was traditionally very much part of projects of pacifying the international stage and as such part of a venerable tradition going back to at least Kant and the abbé de Sieyès of ‘peace through law.’ By contrast, the emphasis on contemporary international criminal tribunals is very much on what has come to be identified as ‘atrocities’, in ways that may even all other things being equal make war more likely.37 Looking back at the history of international criminal justice to seek early validation for this ‘atrocity turn’ involves significant distortions. At Versailles, the emphasis was if anything on punishing both Germany and Kaiser Wilhelm for the act of having gone to war aggressively. The Leipzig trials for German war crimes were a footnote to that broader history, and a very national one at that. In the interwar period, the small group of international criminal law minds that gathered under the helm of the Association internationale de droit pénal, the Inter-​Parliamentary Union, or the International Congress of Penal Law, were clearly focused on avoiding a return of war. If anything, they saw a potential ICC as more of a continuation of nineteenth-​century arbitration and peaceful settlement of disputes, than anything resembling the contemporary international criminal justice system. The fortuitous culmination of this movement came with the Nuremberg and Tokyo tribunals whose entire normative architecture was geared towards punishing ‘crimes against peace’ as the ‘crime of crimes’. The solemn confirmation of the centrality of crimes against peace by the International Law Commission in the early 1950s seemed to entrench a vision of international criminal justice as fundamentally aligned with the economy of the UN Charter and the defence of the jus contra bellum. Although throughout the Cold War the idea of an ICC as a step towards world peace was entertained by a few,38 the creation of the ad hoc international criminal tribunals marked a fundamental switch in terms of international criminal justice’s approach to peace. Where the aggressive nature of a war had earlier taken precedence over the crimes that might be committed during it, the fundamental legality of war henceforth took second place to the issue of how it was waged. Aggression entered the jurisdiction of none of the ad hoc or hybrid international criminal tribunals even when, as in the case of the trial of Saddam Hussein, it could have had a much more central place.39 This ‘humanitarian turn’, deeply depolicitizing in essence, suited an 37  Frédéric Mégret, ‘International Criminal Justice as a Peace Project’ (2018) European Journal of International Law 835. 38  Benjamin B. Ferencz, An International Criminal Court, a Step toward World Peace : A Documentary History and Analysis (Oceana Publications 1980). 39  Andreas L. Paulus, ‘Peace through Justice—​The Future of the Crime of Aggression in a Time of Crisis’ (2004) 50 Wayne Law Review 1, 30.

86

86

History Writing as Anachronism

era in which non-​international armed conflicts seem to make issues of ad bellum less important, but it also marked a significant shift away from fundamental questions of peace and war. Perhaps because of this, even a genealogy of ‘war crimes’ as a somewhat unifying thread from the late nineteenth to the early twenty-​first century is not particularly helpful. It is true that war crimes appear as a consistent motif throughout. But a closer look reveals that they have occupied a very different position and meaning in different eras, and that the hierarchies within they fit are what is most important. From Leipzig to Nuremberg, war crimes were understood only as international war crimes and closely tracked the effort to punish inter-​state offences. The humanitarian logic was the strongest one available to anchor prosecutions so that Hitler’s ‘commando order’, the sinking of civilian ships, and the treatment of POWs all featured prominently. By the 1990s, however, although war crimes still had a significant place, they had taken a largely distinct meaning—​one that would have been anathema to most states who carefully negotiated the Geneva Conventions and their Protocols a few decades before—​encompassing individual criminal responsibility for violations of the laws of war in non-​international armed conflicts primarily directed at civilians. This emphasis on non-​international armed conflicts fundamentally changed the register of international criminal justice from the regulation of armed excesses between to within states. As the definition of war crimes slid towards the non-​international, moreover, it paradoxically and simultaneously undermined itself and was soon eclipsed by something else. Already at Nuremberg, although at the time within the narrow parameters of ‘crimes against peace’, ‘crimes against humanity’ had created a space of regulation for international criminal law that focused on the relationship of the sovereign to its own population. This had only been reinforced by the adoption of the Genocide convention and the recognition that genocide is a crime under international law even when committed in peacetime. For a brief period in the 1990s, it seemed that the emphasis for crimes against humanity on a connection to armed conflict remained an important vector of criminalization. But by the time of the adoption of the Statute of the ICTR, even that loose nexus had been jettisoned. Crimes against humanity increasingly began to appear as what they had always been virtually, namely generalized or systematic attacks against a ‘civilian population’ that might be more likely to occur as part of an armed conflict, but bore no particular necessary connection to one. Ideal-​typically, they were much closer to a particularly egregious form of violation of human rights by the sovereign against its own population than to the humanitarian logic inaugurated in the nineteenth century. In fact, it would have been particularly problematic and misleading to say that ‘crimes against humanity’ in Rwanda in 1994 were committed as part of an armed conflict. Not only did they start before and proceed separately from whatever armed conflict existed between the Front Patriotique Rwandais (FPR) and the Rwandan armed forces, but the connection to an armed conflict is precisely the revisionist line that Hutu extremists in exile have touted. In fact, the common moniker of ‘war crimes tribunals’ is increasingly a problematic misnomer, one that tries to see contemporary ‘crimes against humanity’ tribunals as if they were the heirs to yesterday’s

87

Conclusion

87

much more war-​focused courts. The reasons for this gradual shift away not just from peace but from a war paradigm altogether remain under-​analysed but must surely represent one of the most considerable historical puzzles of international criminal law of the last decades. All this to say that what may appear at first to be a series of discreet evolutions in fact add up to a quite radical overhaul of what international criminal justice stands for. The transition from ‘peace tribunals’ to ‘atrocity’ tribunals is reflective and productive of a deeper reassessment of the dynamics between jus ad bellum and jus in bello, as well as the sort of violence that ought to be central to the international criminal justice project. It contributes to a certain re-​writing of history in which it is atrocities that threaten international peace and security (the 1990s tribunals) rather than crimes against peace that merely lead down the road of atrocities (Nuremberg, Tokyo). In this light, Nuremberg and Tokyo did not so much announce contemporary international criminal justice, as they sought a very different and in some ways incompatible version of it. Every claim to the legacy of these international criminal tribunals, then, must surely contend with the fact that they had in some ways diametrically opposed goals.

Conclusion This chapter has reflected on some of the fundamental discontinuities of international criminal justice, discontinuities that suggest that the project’s superficial homeostasis is belied by deeper ruptures about the very meaning and finality of international criminal law. The chapter can be seen as leading to a series of puzzling interrogations: does contemporary universal jurisdiction really have anything to do with universal jurisdiction as it was claimed to exist in relation to piracy? What if we (had) reinterpreted the Nuremberg tribunal as actually not an international tribunal in any strict sense but as a manifestation of victorious and exceptional power by four states? What if the discipline were understood not only as an increasingly narrow set of major cosmopolitan offences but as the totality of efforts at expanding the criminal-​repressive agenda to the international level? In asking these largely unrelated questions, I merely want to emphasize the role that historical contextualization can have in problematizing the international criminal justice project. History writing in international criminal law is a fraught exercise, one that often says more about the anxieties of the present than a genuine desire to engage the past on its own confusing terms. There is an ‘air of reality’ to the trajectory of international criminal justice in the last century as a continuum because certain terms, figures, and devices continue to co-​exist as part of constellations of meaning. But the past is often a misleading cue to what became, leading to an often essentially anachronistic reading of history. Almost all international criminal law historiography, under the guise of merely telling the story as it is, is premised on subtle exclusions and inclusions that ultimately betray the narrator’s standpoint. In many ways, the orthodox history of international criminal law is profoundly revisionist, repressing each epoch’s ambivalences and reducing the story to a bland

8

88

History Writing as Anachronism

meta-​narrative of ‘Humanity’ versus ‘sovereignty’ with little context as to what these notions may have meant at any given time. The risks are multiple. One danger is that one will underestimate the extent to which predecessors were emphatically not thinking about the same thing when they spoke of international criminal tribunals, as well as the degree to which they are more interesting in their dissonance than as mere prophets of the discipline. The danger, as Martti Koskenniemi put it, is that one will ‘imagine the past obsessed with what we are obsessed with, . . . sometimes forgetting to read past jurists by reference to their own religious or political contexts or projects, as actors in worlds of thinking and acting often quite different from ours’.40 The discipline may thus blind itself to the potentialities of the past as something irreducible, or at least that needs to be carefully understood in all its specificity. This makes for bad history writing, which in itself might not be so catastrophic if it did not significantly hamper our understanding of the present. Here, international criminal justice is at risk of being oblivious to its own significant, idiosyncratic novelty, the extent to which it is not simply or perhaps at all a continuation of everything that came before it, or at least not in the way that is commonly thought. There is of course nothing wrong in itself about being a break with the past: what is problematic is to be so unaware that one is where it matters most and, symmetrically, to think that one is breaking ground where one hardly is. At a deeper level, debates about the exact nature of international criminal law certainly exist as doctrinal debates, but they are also debates about the history of ideas and, indeed, historical debates in and of themselves (in that they have a history and are conducted through history). They have an impact on and condition history writing in international criminal law because they define its object. Rather than the history of international criminal law being the history of a recognized object, therefore, one might better conceptualize it as the history of the definition of that object or, perhaps, the history of that object defining itself. What is international criminal law truly, what is it about, and what are its contours? Among the enduring efforts of the discipline is the attempt to define a realm of true ‘international criminal law’. The move to doctrinally highlight a pure realm of truly international criminal law has led to a certain rarefication of the discipline which then revisits its past through the ‘presentist’ lens of the narrow object it has become. The fluidity of what has counted as international criminal law at any one time, both substantively and institutionally, by contrast, suggests that beyond a certain investment in criminal form and technique, international criminal law is a project with no fixed ideology, a way of talking about criminal matters internationally or international matters criminally, much more than a system. Harnessed to different goals, it may have fundamentally different legal and political connotations. This is not that different from general international law as a law that is more procedure than substance, and in that respect should not come as a surprise; but perhaps because international criminal law is focused on fundamental taboos of the 40  Martti Koskenniemi, ‘Histories of International Law: Significance and Problems for a Critical View’ (2013) 27(2) Temple International and Comparative Law Journal 218.

89

Conclusion

89

international system, the fluid and opportunistic nature of its content has always been more unsettling. At stake, then, is the possibility of writing histories of international criminal law that do not simply read the present back into the past. What might such histories look like? They might, to begin with, emphasize international criminal justice’s long periods of silence as opposed to the rapid eras of institutional change typically revered by international criminal lawyers. The nineteenth century, the interwar period, or the Cold War, in that respect, stand out as moments of sometimes intense intellectual ruminations and imagination despite the paucity of institutional developments, perhaps because the enterprise was not as constrained by existing institutional forms. Another history of international criminal law might also emphasize its moments of ‘regress’ as opposed to merely its moments of ‘progress’. The tendency to see almost every institutional advance as a conquest can blind the discipline to the extent to which progress on some fronts has often been met by deep regressions on others. For example, is the inclusion of aggression in the Rome Statute the apotheosis of ‘crimes against peace’ that it is sometimes described as being, or their swan’s song? Is the ICC itself a positive development for international criminal law or one that will ultimately set it back? Are institutions of international criminal law the prize itself, the number of convictions, or some hypothetical pacification of the international system? Finally, an alternative history of international criminal law might be receptive to its counter-​narratives, the voices silenced, and the routes not taken. It might, for example, emphasize early Third World voices in international criminal justice,41 from the condemnation of Apartheid to the prohibition of mercenarism, or the silenced/​absent voices of early female international criminal lawyers.42 In doing so, it might shed light on how international criminal law’s history continues, in fact, to be a site of intense contestastion.

41  Immi Tallgren, ‘Absent or Invisible? Women Intellectuals and the “Dawn of the Discipline” ’ in Tallgren and Mégret (eds), The Dawn of the Discipline (n 16). 42  Latha Varadarajan, ‘The Trials of Imperialism: Radhabinod Pal’s Dissent at the Tokyo Tribunal’ (2015) 21 European Journal of International Relations 793.

90

6 Redeeming Rape Berlin 1945 and the Making of Modern International Criminal Law Heidi Matthews*

Introduction Over the past thirty years, prosecuting rape and other crimes of sexual violence has become a top priority in international criminal law. In large part, concerted lobbying by feminist public international lawyers, scholars, and activists in the halls of The Hague and Rome is responsible for the entrenchment of sexual violence crimes in the ‘formal rules’ of international law.1 For these feminists, international criminalization is key to ending wartime rape and other violations of the jus in bello (law in war) with a sexual component. Throughout this chapter I will refer to this policy project as the feminist anti-​impunity project. The feminist focus on international criminal punishment is, however, just one aspect of a much larger turn to the criminal law in the contemporary human rights movement.2 As one activist recounts, these feminists’ goal was ‘to reveal and correct the deficiencies in existing humanitarian law with respect to crimes of sexual and gender violence [and] to

*  An earlier version of this chapter received the Audre Rapoport Prize for Scholarship on Gender and Human Rights. I am grateful for the research assistance provided by Nicholas Hay, and the comments and critical engagement of Lisa M. Kelly, Paul Clark, Deval Desai, Karen Engle, Atina Grossman, Janet Halley, Sara Kendall, Duncan Kennedy, Richard Lehun, Zinaida Miller, and the contributors to this volume. 1  See Jennifer Green et al., ‘Affecting the Rules for the Prosecution of Rape and Other Gender-​ Based Violence Before the International Criminal Tribunal for the Former Yugoslavia:  A Feminist Proposal and Critique’ (1994) 5(2) Hastings Women’s Law Journal 171; Janet Halley, ‘Rape at Rome: Feminist Interventions in the Criminalization of Sex-​Related Violence in Positive International Criminal Law’ (2009) 30 Michigan Journal of International Law 1; Karen Engle, ‘Feminism and its Dis(contents): Criminalizing Wartime Rape in Bosnia and Herzegovina’ (2005) 99 American Journal of International Law 778; Hilary Charlesworth, ‘Feminist Methods in International Law’ (1999) 93 American Journal of International Law 379, quoted in Halley, ‘Rape at Rome’ (n 1) 24. 2  See Karen Engle, ‘Self-​critique, (Anti)politics and Criminalization: Reflections on the History and Trajectory of the Human Rights Movement’ in José Maria Benyeto and David Kennedy (eds), New Approaches to International Law: The European and American Experiences (T.M.C. Asser Press 2013) 41. Redeeming Rape: Berlin 1945 and the Making of Modern International Criminal Law. Heidi Matthews. © Heidi Matthews, 2019. Published 2019 by Oxford University Press.

91

Introduction

91

ensure progressive definition of the crimes and rules relating to evidence in cases of sexual violence’.3 The feminist anti-​impunity project has achieved great successes. Today, rape is prosecutable as a stand-​alone war crime and crime against humanity, and it can be the actus reus for torture, terrorism, genocide, enslavement, persecution, and outrages upon personal dignity and inhumane treatment. Other sexually violent war crimes and crimes against humanity now include enforced prostitution, sexual slavery, forced pregnancy, enforced sterilization, forced marriage, and ‘any other form of sexual violence’.4 Feminist experts have also been institutionalized within the United Nations (UN) system, where the Secretary-​General now has a Special Representative on Sexual Violence in Conflict, and also at the International Criminal Court (ICC), where the Office of the Prosecutor contains a Gender and Children Unit and a Special Gender Advisor.5 The Rome Statute of the ICC requires its Victims and Witnesses Unit to include experts in ‘trauma related to crimes of sexual violence’,6 and substantively mandates the Prosecutor to direct herself towards cases of sexual violence. According to the Statute, the ‘effective investigation and prosecution’ of crimes within its jurisdiction encompasses ‘tak[ing] into account the nature of the crime, in particular where it involves sexual violence, gender violence or violence against children’.7 Other procedural provisions of the Statute explicitly incorporate protections for witnesses and victims of sexual violence.8 This chapter suggests a radical critique of the feminist prong of the anti-​impunity project, from both a historical and normative vantage point. It seeks to upset the feminist truism that all wartime sexual violence should be legally describable as criminal, and the related turn to international criminal law as the vehicle of prosecution. The feminist anti-​impunity project was, first, a law reform project. Beginning with the first media reports of mass rapes in the former Yugoslavia in 1992, feminists sought to challenge shortcomings that they perceived in the international humanitarian law relating to sexual violence. In order to get their anti-​impunity project off the ground, feminists began to tell a very specific historical narrative about the failure of the post-​Second World War international tribunals. After the war, the victorious Allies created several institutions that were the first in history to criminally prosecute individuals for wartime crimes at the international level. The International Military Tribunal at Nuremberg (IMT) tried twenty-​one of the major German war criminals, and the International Military Tribunal for the Far East (IMTFE) tried twenty-​eight Japanese defendants. Subsequent to these proceedings the Americans convened a further twelve trials held under the authority of Allied Control Council Law No 10. Feminists have both appropriated and rejected this history. They argued

3  Pam Spees, ‘Women’s Advocacy in the Creation of the International Criminal Court: Changing the Landscapes of Justice and Power’ (2003) 28 Signs: Journal of Women in Culture and Society 1233, 1238. 4  Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 8. 5  Ibid. art 42(9). 6  Ibid. art 43(6). 7  Ibid. art 54(1)(b). 8  See, eg, ibid. art 68.

92

92

Redeeming Rape

that while these trials and the Nuremberg Principles9 that they generated laid the groundwork for the development of modern international criminal law in the post-​ Cold War period, the post-​Second World War tribunals—​which for ease of reference I will collectively refer to as the Nuremberg trials—​all but ignored women and sexual violence. Feminists allege both the presence and absence of rape at Nuremberg, arguing that while there was sufficient evidence at international customary law that rape was, by that time, an international crime, the Nuremberg trials’ reckoning with sexual violence was so weak that a total reform was needed. I will refer to this narrative as the ‘feminist failure narrative’ (FFN). The traditional history of international criminal law places its birth at Nuremberg, but describes the Cold War years as a period of complete obsolescence. According to this story, only once global bipolarity had subsided could international law return to the utopic vision of universal jurisdiction that Nuremberg had inspired. The feminist anti-​impunity project worked symbiotically within the broader disciplinary project of reinvigorating international criminal institutions post-​1990. The two strategies were mutually reinforcing and mutually constitutive of post-​Cold War global governance. The modern institutions of international criminal justice provided fertile ground for the emergence of feminism in the mode of governance.10 Although the ad hoc International Tribunal for the former Yugoslavia (ICTY), the first of the modern tribunals, was ‘empowered to apply only those provisions of international humanitarian law which [. . . were], beyond any doubt, part of customary international law’,11 it is important to point out that ‘restatements’ of the law inevitably generate new law. The strength of the feminist commitment to the wholesale reform of sexual violence law, buttressed by the failure narrative, made those tasked with building modern international criminal law uniquely receptive to the feminist anti-​impunity project.12 But what if the FFN can be contested? Using recent critical feminist histories of the politics of the cultural reception of sexual violence in the post-​war period I attempt to demonstrate the limitations of the feminist anti-​impunity project. In particular, I suggest that it is possible to conceive of a post-​war political settlement wherein women who experienced wartime rape might prefer for their rapists not to be prosecuted. But the contestability of the feminist failure narrative also reveals a much larger structural bias of modern international criminal law; namely, an exclusive focus on jus in bello violations to the exclusion of jus ad bellum (law of war) considerations. I argue that modern international criminal law departs from the Nuremberg paradigm in a way that is not widely acknowledged in the discipline. In so doing, it forecloses a discussion of the politics of criminalizing this or that specific 9  ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with Commentaries’ [1950] II Yearbook of the International Law Commission 374. 10  For a description of ‘governance feminism,’ see Janet Halley, Prabha Kotiswaran and Rachel Rebouché, Governance Feminism: An Introduction (University of Minnesota Press 2018). 11  Ralph Zacklin, ‘Some Major Problems in the Drafting of the ICTY Statute’ (2004) 2 Journal of International Criminal Justice 361, 363. 12  Halley, ‘Rape at Rome’ (n 1) 14–​17.

93

In Bello Shift and the Feminist Failure Narrative

93

in bello violation. One might reasonably ask, however, why certain restrictions on the means of waging war, which in turn give rise to individual international criminal liability—​for example rape—​should be maintained if the overall war effort is just. In the last part of the chapter I put the feminist anti-​impunity discourse in conversation with the Walzerian debate about ‘supreme emergencies’ in order to unpack the implications of repoliticizing international criminal law for the feminist movement. I hope that this chapter can inspire a conversation about the political wisdom not only of feminist interventions, but international criminal law in general.

The In Bello Shift and the Feminist Failure Narrative The legality of the very existence of the ICTY as a subsidiary organ of the Security Council created via Chapter VII of the UN Charter has never been satisfactorily resolved. After an initial heated debate,13 international lawyers’ interest in the issue withered away as they began to accept the inevitability of the international criminal enterprise. In the years since, scholarly attention has largely refocused away from theories of legitimation and turned inwards towards procedural and doctrinal minutiae. As a general rule, the field has not accounted for the fundamental structural shift initiated by the modern tribunals. The latter depart markedly from the Nuremberg paradigm. The Nuremberg trials predicated the criminality of crimes against humanity on their connection with aggressive war. Article 6(c) of the IMT Charter stated that crimes against humanity could only be prosecuted by the tribunal if they were committed ‘in execution of or in connection with’ crimes against peace or war crimes.14 Since the prosecution’s theory of the case was constructed around German aggression (rather than ‘ordinary’ violations of the laws of war), it is fair to say that war crimes were also dependent on crimes against peace. As chief American prosecutor Robert H. Jackson put it, the special criminality of Nazis was derived from their having ‘captur[ed] the form of the German state as an instrumentality’ for territorial expansion.15 Before analysing how the modern international criminal tribunals depart from the Nuremberg precedent, it is worth noting that this concept of criminal war was already a radical modification of the nineteenth-​century state-​centric international legal order, wherein states’ resort to war for the pursuit of political ends was perfectly legal.16 No doubt in part due to the change in the character of war post-​1990, modern international criminal law sought to divorce individual criminality from the 13 See Jose E. Alvarez, ‘Judging the Security Council’ (1996) 90(1) American Journal of International Law 1. 14  Charter of the International Military Tribunal, Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, 82 UNTS 279 (entered into force 8 August 1945) art 6(c). 15  Robert H. Jackson, Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials 48–​9 (Department of State, Publication 3080 1949) (1945). 16  Georg Schwarzenberger, ‘The Judgment of Nuremberg’ (1947) 21 Tulane Law Review 329.

94

94

Redeeming Rape

framework of aggressive war. The post-​Cold War period ushered in ‘new wars’ that resulted from the dissolution of state sovereignty, rather than its outward projection; war become predominately internal, rather than a contest between states.17 The Security Council created the ICTY as an alternative to resort to war to deal with the conflict in Yugoslavia. The (re)turn to international criminal tribunals in 1993 was conceived as a clean new tool of intervention, whereby Western states could influence international relations without risking the blood of their own troops.18 Formally speaking, the ICTY inaugurated a system wherein specific modes of conducting war could be prosecuted without the requirement to take sides. In this way, the UN structured itself as manager of the war, rather than participant in it.19 In this conceptual universe, the reasons animating resort to armed force play no part in the analysis of individual criminal responsibility. The UN Charter attempted to institutionalize Nuremberg’s substantive position on the jus ad bellum, in the sense that it removed states’ nineteenth-​century right to wage war without international oversight. After the Charter, only wars meeting the criteria set out in Chapter VII were legal. But qualifying states’ unlimited right to wage war did not logically require the radical in bello turn that modern international criminal law institutionalized. In other words, one could conceive of a system of individual criminal responsibility that predicated liability for in bello crimes on resort to war in violation of the Charter. Such a system would be structurally analogous to the way Nuremberg operated. The critical observation for the purposes of this chapter is that the ad hoc tribunals and the subsequent international criminal courts took a conceptual step beyond Nuremberg and the UN Charter, making all belligerents equally liable to punishment for violations of the means of waging war, but not for the ends of war.20 On this model, it is possible to wage an unjust war justly, and a just war unjustly. In modern international criminal law, the jus ad bellum question is explicitly non-​justiciable, infinitely deferring a substantive legal analysis of the goodness or badness of resort to armed force in the first place.

17 See Mary Kaldor, New and Old Wars:  Organised Violence in a Global Era (Polity Press, 3rd edn, 2013). 18  Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press 2000) 206–​19. 19  This structure was challenged once NATO militarily intervened in the 1999 Kosovo bombing campaign. After receiving requests to investigate allegations of in bello violations committed by NATO, including allegations that NATO directly targeted civilian infrastructure, the ICTY Prosecutor established an ad hoc committee to advise whether an investigation should be pursued. The committee found that there was insufficient evidence to justify an investigation. See Paolo Benvenuti, ‘The ICTY Prosecutor and the Review of the NATO Bombing Campaign against the Federal Republic of Yugoslavia’ (2001) 12(3) European Journal of International Law 503. In 2004, the International Court of Justice held that it lacked jurisdiction to hear a case brought against NATO member states by Bosnia and Herzegovina. 20  Robert D. Sloane, ‘The Cost of Conflation: Preserving the Dualism of Jus ad Bellum and Jus in Bello in the Contemporary Law of War’ (2009) 34 Yale Journal of International Law 47, 49–​50. I would suggest that if the modern international criminal tribunals had adopted a Nuremberg-​like posture towards the relationship between the jus ad bellum and the jus in bello, it would have been easier to prosecute the NATO bombings. Instead, the tacit acceptance of NATO’s illegal resort to force in Kosovo created a humanitarian intervention exception to the UN Charter system, further compounding confusion.

95

In Bello Shift and the Feminist Failure Narrative

95

The feminist anti-​impunity project, I argue, is emblematic of this turn to the jus in bello, as well as generative of it. The call by feminist NGOs to investigate and prosecute the mass rapes committed in Yugoslavia was a major factor in the decision to create the ICTY.21 Cherif Bassiouni, former chair of the Commission of Experts tasked with investigating atrocities and reporting to the ICTY, described the Commission’s work between 1992–​94 as including ‘the world’s largest rape investigation’.22 This suggests that from the beginning sexual violence was firmly on the policy agenda of the new tribunals. In her study of feminist legal activist moves between 1994–​98, Janet Halley has observed that [t]‌he initial goals were a matter of perfect consensus among the feminists involved: they wanted authoritative enumeration of sexual crimes in their own terms. They wanted to establish that rape, sexual violence, and sexual slavery are IHL [international humanitarian law]/​ ICL [international criminal law] crimes. They wanted these sexual crimes to be lodged as high up the hierarchy of IHL/​ICL codification as they could get them, and in terms that derive from their shared feminist understanding of them.23

In other words, to the extent that the Nuremberg legacy could be described as equivocal on sexual violence, feminists wanted to dispel any possibility of doubt about the criminality of the latter. They also wanted to increase the gravity of sexually violent crimes by, first, distilling variations into discrete, individually criminal acts and, second, by arguing that rape, like genocide and torture, had taken on the status of a jus cogens crime in customary international law.24 In this way feminists could give legal purchase to the idea of rape as an exceptional harm; as a ‘fate worse than death’.25 This is not to say that many feminists have not been sensitive to the ideological risks associated with the criminalization of wartime sexual violence. For example, feminists disagreed heatedly on whether the Yugoslavian rapes should be prosecuted as acts of genocide, in the sense that they targeted women primarily on ethnic grounds, and only incidentally on the basis of gendered vulnerability.26 For Catharine MacKinnon, the main proponent of the ‘genocidal rape’ position, the rapes were ‘first a genocide, in which ethnicity is a tool for political hegemony; the war is an instrument of the genocide; the rapes are an instrument of the war’.27 21  Pascale R. Bos, ‘Feminists Interpreting the Politics of Wartime Rape: Berlin, 1945; Yugoslavia, 1992–​1993’ (2006) 31(4) Signs: Journal of Women in Culture and Society 995, 1014. 22  M. Cherif Bassiouni, ‘From Versailles to Rwanda in Seventy-​Five Years: The Need to Establish a Permanent International Criminal Court’ (1997) 10 Harvard Human Rights Journal 11, 41. 23  Halley, ‘Rape at Rome’ (n 1) 49–​50 (emphasis in original). 24  See Catharine A. MacKinnon, ‘Rape, Genocide, and Women’s Human Rights’ (1994) 17 Harvard Women’s Law Journal 5; Nicole Hallett, ‘The Evolution of Gender Crimes in International Law’ in Samuel Totten (ed), Plight and Fate of Women During and Following Genocide (Transaction 2009) 183, 195–​6 (arguing that the Rome Statute was intended to codify jus cogens crimes against humanity). 25  See Clare McGlynn, ‘Rape as “Torture”? Catharine MacKinnon and Questions of Feminist Strategy’ (2008) 16 Feminist Legal Studies 71. 26  For a review of the feminist debate between the ‘sexism approach’ and ‘genocide approach’ to rape, see Bos, ‘Feminists Interpreting the Politics of Wartime Rape (n 21) 1012–​18; see Engle, ‘Feminism and its (Dis)contents’ (n 1). 27  MacKinnon, ‘Rape, Genocide, and Women’s Human Rights’ (n 24) 8 (emphasis added).

96

96

Redeeming Rape

Feminist opponents to the genocidal rape framing argued that it would degender rape by refocusing the locus of the harm away from gender and onto ethnicity, thus ‘risk[ing] rendering rape invisible once again’.28 At first blush, the feminist anti-​impunity project might appear to contradict the in bello shift that I argue characterizes modern international criminal law, especially for the pro-​genocidal rape camp. MacKinnon argued vehemently that the Serbs were engaged in an international war of aggression, a ‘genocide through war’, in which rape was ‘a tool, a tactic, a policy, a plan’, and which could only be legally addressed by taking sides.29 She accused advocates of the ‘sexism approach’ to criminalization of engaging in a ‘feminist version of the whitewash’ in order to ‘make sure that no one who cares about rape takes a side in this war against these particular rapes’.30 While on the face of it MacKinnon appears to argue that legal mechanisms of redress should be triggerable by substantive political considerations pertaining to the justness of the war—​in other words, that intervention (legal and military) should be based on the judgment that Serbia was pursuing an illegal war—​a closer analysis reveals the conceptual flaw in her argument. Genocide, unlike aggression, is actually a prohibited means of waging war. According to the 1951 Genocide Convention, genocide can be committed in peacetime as well as wartime.31 In this way, the Convention departs already from the Nuremberg paradigm, wherein crimes against humanity had to be committed in connection with an aggressive war. Conceptually separating genocide from any necessary connection to war effectively brackets acts intended to destroy on ‘national, ethnical, racial, or religious’ grounds as not capable of being committed in pursuit of political goals. In other words, the concept of aggressive war was, at its core, a political concept; in attaching crimes against humanity to the pursuit of political violence, Nuremberg maintained the conceptual unity of in bello and ad bellum considerations. Crimes against humanity were criminal primarily because they were committed in furtherance of a substantively objectionable political goal.32 By relegating genocide to the purview of an in bello violation (even if one that must be committed with specific intent to destroy an enumerated group), international criminal law depoliticizes both the process of rendering criminal guilt for genocidal acts, and the historical narrative it tells about the nature of those acts. This depoliticization is exactly what feminists were looking for with regard to sexual violence crimes, and lauded as a normatively preferable system to the Nuremberg framework.33 This move is especially evident in MacKinnon’s assessment of the nature of the Yugoslavian conflict. She describes the war in ahistorical terms, as fundamentally 28  Rhonda Copelon, ‘Surfacing Gender: Reconceptualizing Crimes Against Women in Time of War’ in Alexandra Stiglmayer (ed), Mass Rape: The War against Women in Bosnia-​Herzegovina (University of Nebraska Press 1994) 82, quoted in Engle, ‘Feminism and its (Dis)contents’ (n 1) 786. 29  MacKinnon, ‘Rape, Genocide, and Women’s Human Rights’ (n 24) 9. 30  Ibid. (emphasis in original). 31  Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277, (entered into force 12 January 1951) art 1. 32  Liz Philipose, ‘The Laws of War and Women’s Human Rights’ (1996) 11(4) Hypatia 46, 55. 33 Ibid.

97

In Bello Shift and the Feminist Failure Narrative

97

motivated by genocidal intent, rather than conflict between competing emerging sovereignties in the immediate aftermath of the Cold War. This account is at best naïve with regard to the specific dynamics of the Yugoslavian crisis, and at worst a strategic move designed to get rape on the international agenda at the cost of a nuanced political understanding of the conflict, including women’s role in it.34 MacKinnon’s strategic deployment of the genocidal rape argument is internally incoherent in ways that mirror the contradictions of the larger feminist anti-​impunity project. Both rely on aggression to legitimize their interventions, but quickly reject this paradigm in favour of a turn to an exclusively in bello frame. Whereas the aggression frame required ‘taking sides’ on the justness of a given war, the in bello turn rejects taking sides in order to prosecute rape ‘on all sides’.35 Once we recognize that genocide is allied with the in bello turn, we see that the distinctions between the sexism approach and the genocide approach fade away. But the internal feminist disagreement over genocidal rape masks the significance of the ‘perfect consensus’ that notwithstanding debates over tactics, the overall strategy of prosecuting rape remained unquestioned. Feminists agreed that prosecution was the only way to achieve justice for women’s suffering in war; the true value of the harm of wartime rape could only be made legally legible in this register. Feminists took a ‘reality-​based approach’,36 arguing that ‘giving voice’ to victims’ experiences ‘in all their horrifying and indelicate details’ was necessary to make rape intelligible ‘to a male-​dominated legal culture’.37 Whether the specific prosecution strategy adopted in a given case construed rape as primarily genocidal, or even tortuous, ultimately would not disrupt the depoliticization that international rape prosecutions as such would engender. The shared goal of the feminist anti-​impunity project is best described as decisively taking off the table the option of rape as a legitimate tactic in (or ‘weapon of ’) war. Cloaking rape in the shadow of genocide could aid this project, since doing so suggested that perhaps rape, too, might enjoy the status of a jus cogens violation,38 and certainly contributed to increased media attention and political will to legally intervene in the Yugoslavian conflict.39 But it would not have disrupted the core feminist desire to shift international criminal law away from the Nuremberg jus ad bellum paradigm toward a new, jus in bello-​focused  model. The FFN was a key part of the feminist effort to prioritize rape on the international criminal agenda post-​1990. In order to consolidate the centrality of sexual violence in modern international criminal law, feminists had to show that the law could be changed in the process of its restatement. Revealing the historical inadequacy of the 34  For a discussion of the non-​fundamentally genocidal political basis of the conflict, see Bos, ‘Feminists Interpreting the Politics of Wartime Rape’ (n 21) 1011–​12. 35  I borrow the ‘rape on all sides’ framing from Engle, ‘Feminism and its (Dis)contents’ (n 1). 36  MacKinnon, ‘Rape, Genocide, and Women’s Human Rights’ (n 24) 6. 37  Catherine N. Niarchos, ‘Women, War, and Rape: Challenges Facing the International Tribunal for the Former Yugoslavia’ (1995) 17 Human Rights Quarterly 649, 654; see also Tamara L. Tompkins, ‘Prosecuting Rape as a War Crime: Speaking the Unspeakable’ (1995) 70(4) Notre Dame Law Review 845. 38  MacKinnon, ‘Rape, Genocide, and Women’s Human Rights’ (n 24) 8. 39  Bos, ‘Feminists Interpreting the Politics of Wartime Rape’ (n 21) 1012.

98

98

Redeeming Rape

post-​war prosecutions was an effective way to do this. Nuremberg was important for feminists because they appropriated its paradigm of individual criminal responsibility at the same time that they advocated sweeping reforms to rape law. Beginning in the early 1990s, and continuing today, feminists tell a story in which the post-​ war institutions failed to adequately address sexual violence crimes. Feminists assert that at these trials ‘sexual violence was largely ignored’,40 because ‘gender crimes were not pursued with the same degree of diligence as other crimes’;41 ‘[t]‌ogether, the Nuremberg and Tokyo tribunals failed to adequately address sexual violence’.42 Fionnuala Ní Aoláin presents an especially stark version of the FFN, noting that [t]‌he Nuremberg Tribunal was a forum in which the experiences of gendered and systematic violence, characterized by sexual indignity was not heard. . . . Thus, the Nuremberg and Tokyo Trials followed an age old pattern that silenced the experience of women in war and communicated that sexual violence was not an aberration, but rather a vocabulary of communication between combatants which was safe from external examination.43

What, exactly, are the essential elements of this alleged ‘failure’? First, feminists argue that crimes of sexual violence were not sufficiently particularized in the IMT and IMTFE statutes because neither rape nor any other gender-​based crime was explicitly enumerated as a war crime or crime against humanity. Second, feminists claim that although evidence of sexual violence was introduced at both the Nuremberg and Tokyo trials, overall, insufficient testimony of sex crimes against women was heard. Finally, even where sex crimes were directly addressed, as at the IMTFE, feminists argue that the prosecution strategy was unjustifiably limited, and did not capture the full range of sex-​related harm suffered by women victims. When feminists argue lack of particularization, they concede that rape and perhaps other crimes of sexual violence were, by 1945, already established in customary international humanitarian law. Contemporary writers themselves noted that rape was at least implicitly envisaged as a crime under customary international law.44 Additionally, crimes of sexual violence were not the only acts not specifically enumerated in the tribunals’ statutes as stand-​alone offences, but which were nevertheless included in the findings of guilt; for example, the IMT judgment makes multiple references to terrorization of the civilian population, without having listed terrorism as a predicate offence in the Charter. For feminists, the point of insufficiency appears to be the subsidiary status of sex crimes. Neither the war crimes provisions nor the 40  Kelly D. Askin, ‘Prosecuting Wartime Rape and Other Gender-​Related Crimes under International Law: Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law 288, 301. 41  Barbara Bedont and Katherine Hall-​Martinez, ‘Ending Impunity for Gender Crimes Under the International Criminal Court’ (1999) 6(1) Brown Journal of World Affairs 65, 71. 42  Nicola Henry, War and Rape: Law, Memory and Justice (Routledge 2011) 29. See also Miriam Sapiro and Patricia Viseur Sellers, ‘Arriving at Rwanda: Extension of Sexual Assault Protection Under the Statutes of the Ad Hoc International Criminal Tribunals’ (1996) 90 Proceedings of the Annual Meeting (American Society of International Law) 605, 606. 43  Fionnuala Ní Aoláin, ‘Sex-​Based Violence and the Holocaust—​A Reevaluation of Harms and Rights in International Law’ (2000) 12 Yale Journal of Law & Feminism 43, 68 (fn omitted). 44  Rape was contemplated as a crime as early as 1919; Egon Schwelb, ‘Crimes Against Humanity’ (1946) 23 British Yearbook of International Law 178, 181.

9

In Bello Shift and the Feminist Failure Narrative

99

crimes against humanity provisions of the post-​war tribunals were exhaustive, and sex crimes could have been read in to the enumerated crimes under the heading of ‘other inhumane acts’. However, for feminists, ‘merely’ subsuming sex crimes under this catch-​all rubric, or introducing them as evidence of other crimes, occasioned an injustice in not singling out the specific trauma suffered by women victims of sexual violence.45 Central to the FFN is the contention that rape ‘on both sides’ was ignored in the post-​war trials. Here, feminists argue that both the mass rapes committed by German forces, predominately in the East, and the rapes committed by Allied forces, predominately the Soviets, were erased from the legal history of the Second World War. The exact number of rapes committed by either side is unknown, and fraught with controversy. Suffice to say that rape and other forms of sexual violence were systematically, and often brutally, inflicted on all categories of women during the war, and in its aftermath.46 Berlin, the symbolic centre of the Reich, was particularly brutally targeted during the fall of the city in the spring of 1945.47 In the early 1990s, feminists began to juxtapose the mass rapes committed by Soviet forces against German women—​for ease of reference, I will refer to these collectively as the ‘Berlin rapes’—​with the then-​ongoing rapes committed during the war in the former Yugoslavia.48 The Berlin rapes were narrated in the register of ‘forgotten history’ and ‘silenced’ female voices. Feminists explicitly linked the historical memory project of the Berlin rapes with their efforts to lobby for the international criminalization of the Yugoslavian rapes. In her documentary film ‘Liberators Take Liberties,’ and book49 of the same title, German feminist Helke Sander attempted to bring to light what ‘had not been a topic for nearly fifty years’.50 The opening sequence of her film explicitly compares the German rapes with the Yugoslavia rapes: ‘Everybody knew about it, but still no one talked about it, just like today in Kuwait and Yugoslavia’.51 ‘Remembering’ the Berlin rapes was meant to prevent the Yugoslavian rapes from being subjected to the same silencing that feminists allege in FFN. The conceptual alliance between the Yugoslavian anti-​impunity lobby and the story of the Berlin rapes was predicated on the idea that Nuremberg failed, in part, because it silenced women victims’ experience of their violation. This silencing, in turn, meant that women were not part of the public reckoning with the war’s

45  See, eg, Niarchos, ‘Women, War, and Rape’ (n 37) 665 (‘despite this grisly litany of crimes, “rape” does not appear once in the 179 page judgment of the IMT. It is apparently folded into the general category of “ill treatment of the civilian population”.’). 46  See Jeffrey Burds, ‘Sexual Violence in Europe in World War II, 1939–​1945’ 37(1) Politics & Society 35; Norman M. Naimark, The Russians in Germany: a history of the Soviet Zone of occupation, 1945–​1949 (Harvard University Press 1995) 69–​140. 47 Naimark, The Russians in Germany (n 46) 79–​80. 48  See, eg, Tompkins, ‘Prosecuting Rape as a War Crime’ (n 40) 862; Jasminka Kalajdzic, ‘Rape, Representation, and Rights: Permeating International Law with the Voices of Women’ (1995–​96) 21 Queen’s Law Journal 457, 462. 49 Helke Sander and Barbara Johr, BeFreier und Befreite:  Krieg, Vergewaltigungen, Kinder (Kunstmann 1992). 50  Helke Sander and Stuart Liebman, ‘Remembering/​Forgetting’ (1995) 72 October 15, 15. 51  Quoted in Bos, ‘Feminists Interpreting the Politics of Wartime Rape’ (n 21) 1003.

10

100

Redeeming Rape

atrocities. This suggests not only that women’s experience of war was exclusively one of vulnerability and victimization, rather than agency and participation, but also that all reasonable women who experienced wartime sexual violence would have, if given the opportunity, chosen to have had their voices heard through the prosecution of their rapists. Employing this logic, feminists used the FFN as a reason to ratchet up the relative importance of rape in modern international criminal law. The idea that the IMT and IMTFE’s failure to adequately address sexual violence is compounded by the failure to address the Berlin rapes is central to the overall FFN. Arguing that ‘victor’s justice’ explains both silences, feminists place raped women outside the purview of political decision-​making that went into prosecutorial strategy about rape. For feminists, the fact that in the Second World War rape was committed on all sides explains the fact that it could not be adequately prosecuted: ‘The failure to charge even a single count of rape at the Nuremberg trial is emblematic of the International Military Tribunal’s deeply compromised position in relation to offences for which the victorious Allied powers, specifically the Soviet Union, did not exactly have clean hands.’52 It also codes the choice not to prosecute rape as political while erasing the possibility that rape could be understood as a legitimate means of waging war. Nicola Henry argues that both the selective use and general non-​use of women’s voices at Nuremberg was ‘a way to bolster political and often nationalistic goals from all sides of the conflict’;53 ‘rape was not considered an appropriate subject for a public forum, let alone an international war crimes trial—​unless used for political and nationalistic purposes’.54 This conclusion is contestable—​we should not assume that these raped women were not in a position to judge whether a particularized and highly visible airing of their individual experiences via international prosecution was preferable to the generation of a national narrative of collective suffering. Further, in making this socio-​political decision, they may have actively contributed to the social valuation of their rapes. While it is undeniable that the post-​war international trials were instrumental in contributing to national narratives of guilt, innocence and redemption, it is not so clear that many survivors of rape were not also themselves participants in the construction of these narratives. However, the FFN necessarily posits the collective memory of the Berlin rapes as one of silence and erasure, rather than signifying a political compromise that raped women may or may not have consented to as part of the terms of the post-​war political settlement. The next section explores how important limitations of the FFN are revealed by putting it in conversation with a body of critical feminist history that questions the degree to which silence can be usefully understood as characterizing the German social consciousness of the Berlin rapes.

52  Niamh Hayes, ‘Sisyphus Wept: Prosecuting Sexual Violence at the International Criminal Court’ in William Schabas, Niamh Hayes, and Yvonne McDermott (eds), Ashgate Research Companion to International Criminal Law: Critical Perspectives (Ashgate 2013) 7. 53 Henry, War and Rape (n 42) 40. 54  Ibid. 51 (emphasis added).

10

Contesting the Feminist Failure Narrative

101

Contesting the Feminist Failure Narrative Legal scholars critical of the feminist anti-​impunity project have worried that the rape ‘on all sides’ approach ‘sometimes functioned to exonerate women from responsibility’55 for their involvement in war. For these scholars, the failure to prosecute rape in and of itself is not objectionable in the straightforward way that anti-​impunity feminists urge. Instead, the harm legitimately suffered by German rape survivors cannot be (legally) assessed without taking into account the varied levels of guilt and complicity in the Nazi regime that may be ascribable to these women. This section attempts to describe how we might imagine making international criminal policy decisions in light of the wave of critical feminist historical work, also beginning in the 1990s, that contests the idea that the Berlin rapes where subjected to overwhelming and immediate social and political silencing. Historians working in this tradition argue that the silence that feminists allege resulted from the FFN emerged instead from the complex interaction between raped women’s private suffering and their public participation in the construction of narratives of national victimization. If we understand women who experienced rape as also often capable of taking control of their experiences through the pursuit of their political goals, we might begin to conceive of an international system that predicates criminality at least in part on the unjustness of war. Atina Grossmann, Elizabeth Heineman, Mary Nolan, Wendy Lower, Gudrun Schwarz, and others illustrate the complex and mutually constitutive relationship between gender and participation in and support for the Nazi regime. These historians write in opposition to feminist histories that support the FFN.56 In particular, they seek to displace the ‘masculine myth’ that understands war as a necessarily male project in which women are dominated and their suffering instrumentalized to serve (male) national-​political goals.57 These critical historians reject the dichotomy between the homefront (private, familial) and the warfront (public, male) that is implied by this conceptualization of war. Instead, they argue that women’s mobilization in the Second World War effort far exceeds previous estimates, and indeed was essential to the Nazi war machine.58 Schwarz argues that in the immediate post-​war period, ‘[w]‌omen in uniform’ and the Nazi activists and party members, the ‘perpetrators, followers, bystanders’ had shucked off their past and been transformed into innocent women, women whose whole existence was devoted to their husbands and children and who had lived their 55  Engle, ‘Feminism and its (Dis)contents’ (n 1) 796. 56  See, eg, Andrea Petö, ‘Memory and the Narrative of Rape in Budapest and Vienna in 1945’ in Richard Bessell and Dirk Schumann (eds), Life After Death: Approaches to a Cultural and Social History of Europe During the 1940s and 1950s (Cambridge University Press 2003) 129. 57  Gudrun Schwarz, ‘During Total War, We Girls Want to Be Where We Can Really Accomplish Something: What Women Do in Wartime’ in Omer Bartov, Atina Grossmann, and Mary Nolan (eds), Crimes of War: Guilt and Denial in the Twentieth Century (New Press 2002) 121, 123. 58  See Wendy Lower, Hitler’s Furies: German Women in the Nazi Killing Fields (Houghton Mifflin Harcourt 2013).

102

102

Redeeming Rape

lives in the private sphere of the family and were not responsible for the dictatorship or Nazi crimes. What remained in postwar folk memory for most Germans . . . were memories of women’s sacrifices, sufferings, and exertions in the absence of their men.59

This analysis inverts the FFN claim that the rapes were silenced as part of the male dominance logic of war, wherein women’s suffering did not figure in the political ideology of war, except insofar as it was part of the male idiom of violence. In Susan Brownmiller’s iconic words, ‘[t]‌he body of a raped woman becomes the ceremonial battlefield, a parade ground for the victor’s trooping of the colors. The act that is played out upon her is a message passed between men—​vivid proof of victory for one and loss and defeat for the other.’60 Schwarz’s passage contests this account, reinvesting women with political capacity in wartime. The feminist truism that women did not and do not also participate in the communicative action between belligerents that constitutes the discursive terrain of war is, as a historical matter, false. If women’s participation was crucial to the Nazi war effort, then women’s experience of the war—​the ‘reality’ that feminists claim to reveal and which animates their normative positions—​was not one of unmitigated suffering. Any discussion of women’s preferences or best interests in this period must begin by recognizing that for many Germans, the real suffering of the war only began after unconditional surrender.61 In his study of everyday life in post-​war Berlin, Paul Steege describes how ‘ordinary’ Berliners’ concern for obtaining the necessities of survival dominated social consciousness and gave the larger political goal of assigning guilt at Nuremberg, ongoing between 1945–​46, an air of irrelevancy ‘on the ground’: These high political decisions and debates garnered significant and ongoing attention in public discussions and the popular press but played only a subordinate role in Berliners’ day-​to-​day existence. In the former German capital, the material implications of life in a destroyed city mattered more. Faced with real and sustained scarcity, Berliners had to battle to survive, and, for the overwhelming majority of the population, this struggle dominated all aspects of social, cultural, and political life in the city.62

From a policy perspective, German women had bigger problems to contend with than whether their rapes, or indeed the mass rapes committed by German soldiers on the Eastern Front, should be prosecuted as international crimes. This observation, of course, cuts both in favour of the FFN and against it. If ‘ordinary’ women were too preoccupied with their basic survival needs, then how could they simultaneously express larger policy preferences? The end of the Second World War and the beginning of the Cold War were not events that took place in a political realm divorced 59  Schwarz, ‘What Women Do in Wartime’ (n 57) 122. 60  Susan Brownmiller, Against Our Will: Men, Women and Rape (Fawcett Books 1975) 38. 61 Sabine Behrenbeck, ‘Between Pain and Silence:  Remembering the Victims of Violence in Germany after 1949’ in Richard Bessell and Dirk Schumann (eds), Life After Death: Approaches to a Cultural and Social History of Europe During the 1940s and 1950s (Cambridge University Press 2003) 37, 39–​40; Paul Steege, Black Market, Cold War: Everyday Life in Berlin, 1946–​1949 (Cambridge University Press 2007) 33 (citation omitted). 62 Steege, Black Market, Cold War (n 64) 19.

103

Contesting the Feminist Failure Narrative

103

from the influence of the German population: ‘[w]‌hile it is true that Berliners often decided not to attend party meetings or political assemblies or work on behalf of political campaigns, people did not withdraw from political struggles’.63 The point here is that the public and private aspects of women’s post-​war experience interacted in complex and contradictory ways, and that women’s political preferences cannot be described as always already over-​determined by feminist ideas of their private suffering. Rather, in 1945 Berlin, women expressed their political preferences through their ‘private,’ everyday efforts to survive: ‘high politics depended on the outcomes of the street-​level battles for survival taking place, for the most part, beneath public notice’.64 As Grossmann cautions, we must understand wartime sexual violence ‘as both an intensely personal, and a public, politically and historically constructed event’.65 Thus contextualized, raped women in Berlin can be understood as not just, or primarily victims, but also as active political agents. Even their rapes can now be conceptualized as, at least in some cases, outside the framework of male domination. Precisely because of their intense survival needs, women strategized and negotiated with the Soviets. Using one woman’s description of her experience with the Soviets in the anonymous diary A Woman in Berlin, Janet Halley has described how, in post-​war Germany, the line between sex work and rape was often blurred.66 Steege analyses the diary similarly, noting that the woman in question ‘gradually seized partial control over these encounters, selecting her protectors and eventually even integrating them into a post-​war language of provision’.67 Crucially, the feminist portrayal of women’s wartime experience in the exclusive register of suffering obscures the fact that the trope of female innocence and vulnerability (to rape) was deployed in the post-​war state in order to detract from German reckoning with society-​wide complicity in the Nazi regime. In this way, the FFN erases the process by which post-​war German societies’ efforts to build a new national narrative depended on, and helped to construct, memory of women as primarily rapable objects in war, rather than active subjects who supported the Third Reich. Here, degendering rape also degendered German complicity in Nazism. This move opens up conceptual space to ‘hear’ German women’s wartime experience as not exclusively one of victimization, but also of participation and perpetration. My point here is not to suggest that some women’s individual experiences of rape were not silenced in the post-​war period in some meaningful sense. Indeed, as Heineman notes, the more intensely the rapes were appropriated by the state (both West Germany and East Germany), they ‘functioned ever less effectively in

63  Ibid. 61. For a society that was permeated with participation in Nazi politics, the logic of distancing from the political past by withdrawing into ‘private’ life also makes sense. 64  Ibid. 62 (emphasis in original). 65  Atina Grossmann, ‘A Question of Silence: The Rape of German Women by Occupation Soldiers’ (1995) 72 October 42, 47. 66  Janet Halley, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’ (2008) 9 Melbourne Journal of International Law 79, 102–​3. 67 Steege, Black Market, Cold War (n 61) 89.

104

104

Redeeming Rape

describing a [uniquely] female experience’.68 The impulse of feminists like Sander to isolate the Berlin rapes and emphasize their uniqueness is therefore understandable. But it also comes at the cost of depoliticizing women’s experience of the Second World War, in that it reads out the possibility that raped women themselves could have reasonably preferred the instrumentalization of their rapes as an effective tactical move in the (re)construction of state sovereignty to a criminal law discourse of private, individual and gendered rape. In other words, the fact that the emerging West and East German states’ pursuit of new national-​political identities involved backgrounding (part of ) the female experience of rape does not inexorably lead to the normative conclusion that feminists draw; namely, that a public, collective and degendered account of rape is not good for women. Indeed, in post-​war Germany, many raped women had a lot to gain from just such an official appropriation of their rapes. The overarching narrative of German suffering produced in the post-​war period silenced individual experiences of rape in order to construct a public narrative of national rape; as Heineman notes, public rape discourse ‘ceased to be references to rapes of women and instead turned into allusions to the rape of Germany.’69 However, the construction of this narrative can be understood as a political compromise in which women participated, not least because it served to exonerate ‘ordinary’ Germans, including women, of their complicity in the war. Grossmann explains that the [c]‌ollective experience of rape of German women . . . insinuated itself into postwar Germans’ view of themselves as primarily ‘victims’ and not ‘agents’ of National Socialism and war. The mass rapes of 1945 inscribed indelibly in many German women’s memory a sullen conviction of their own victimization and their superiority over the vanquisher who came to liberate them. Mass rapes confirmed Germans’ identity—​both the women who were assaulted and the men (dead, wounded, maimed, or in prisoner-​of-​war camps) who could not/​would not protect them—​as victims of Missbrauch (abuse).70

The politics of women’s complicity in a ‘German’ narrative of suffering were particularly pronounced in the East. Most of the women who experienced sexual violence at the hands of the Soviets were integrated into the new communist state; for these women, rape really was personal. Although women’s experience of rape played an important part in the Socialist Unity Party’s defeat during the first post-​Nazi elections in Berlin in 1946,71 the German Democratic Republic (GDR) relied on a particular narrative of victimization in consolidating its national identity in opposition to the Federal Republic of Germany. Here, Nazi crimes were dealt with by rejecting the need to process them in the public forum afforded by a tribunal. The official GDR narrative of Soviet friendship meant that East Germans were to be understood as victims not of Soviet liberators, but of Hitler’s fascism. This celebration of a new political future worked in harmony with the widespread social 68  Elizabeth Heineman, ‘The Hour of the Woman: Memories of Germany’s “Crisis Years” and West German National Identity’ (1996) 101 The American Historical Review 354, 374. 69  Ibid. 369–​70. 70  Grossmann, ‘A Question of Silence’ (n 65) 48–​9 (emphasis in original). 71  See Steege, Black Market, Cold War (n 61).

105

Contesting the Feminist Failure Narrative

105

desire to distance the polity from German guilt. The imperative of adopting the correct political posture was more important than the West German concept of Vergangenheitsbewältigung (‘working through the past’), and it had the convenient effect of making ‘the evaluation of the individual’s past depend[] on behavior in the present. By showing the right political attitude, one could find forgiveness for failures during the war. . . . [T]‌he GDR granted general absolution without requiring confession of one’s sins.’72 For raped women, it is entirely plausible—​whether or not they were truly committed to a communist politics, but especially so in the latter case—​that accepting the redemption offered by this narrative was preferable to focusing on the prosecution of their Soviet rapists. While West German politics were also defined in opposition to the ‘other’ Germany, the pursuit of continuity with the Volksgemeinschaft meant that the Western narrative of suffering did not offer the same redemptive quality.73 Instead, it was inimicably tied up with an underlying conviction of German superiority and lingering guilt. Women might still have preferred it, however, either because of nostalgia for the Reich, or as a less taxing alternative to a full reckoning with their own guilt. International criminal law after 1990 does not ask whether the war in which crimes were committed was moral or immoral, just or unjust, legal or illegal. In other words, today the jus ad bellum is irrelevant to the allocation of guilt and innocence in war. As I have shown, in deferring this substantive political question, modern international criminal law can prosecute combatants on all sides of a conflict without the need to delve into the political questions that define the ad bellum universe. As the Special Tribunal for Lebanon has affirmed, in international criminal law’s disciplinary consciousness, tribunals address the ‘law’, while ‘politics’ is reserved for states and the Security Council.74 The question whether it would have been a good thing to prosecute the Berlin rapes is another way of asking whether raped German women are more accurately described as victims or perpetrators in the broader context of the Second World War. In international criminal law, it is conceptually very hard to occupy these roles at the same time. But the structural capacity to prosecute rape (or indeed any in bello violation) ‘on all sides’ made possible by the in bello turn also relies on the crucial distinction between civilians and combatants. In the law of war, and in line with the feminist anti-​impunity project, the ‘civilian’ is coded as a gendered category. However, as Helen Kinsella suggests, the fact that ‘discourses of gender do not simply denote the difference of combatant and civilian, but produce that difference’, is exactly why the distinction should be contested.75 Critical feminist histories of the Berlin rapes demonstrate the political costs of adopting a legal posture that privileges one categorization of raped women over another. Marking raped women as always

72  Behrenbeck, ‘Between Pain and Silence’ (n 61) 47. 73  Ibid. 50. 74  The Prosecutor v Ayyash et al. (Decision on the Defence Appeals Against the Trial Chamber’s “Decision on the Defence Challenges to the Jurisdiction and Legality of the Tribunal”) (Special Tribunal for Lebanon, Appeals Chamber, STL-​11-​01/​PT/​AC/​AR90.1, 24 October 2012) [52]. 75  Helen Kinsella, ‘Gendering Grotius: Sex and Sex Difference in the Laws of War’ (2006) 34(2) Political Theory 161, 167 (emphasis in original).

106

106

Redeeming Rape

already victims, and Soviet soldiers as always already perpetrators, obscures more complicated narratives about women’s wartime experience, including accounts that foreground many of these women’s participation in an unjust and aggressive war. In other words, the refusal to take sides implied by the rape ‘on all sides’ framework disallows the possibility that some raped women could have preferred an approach to post-​war accountability that favoured the non-​prosecution of their rapes in order to promote a narrative of national suffering and deemphasize their own guilt. The Berlin 1945 rapes show how international criminal law can become a tool for the depoliticization of war, and further that this depoliticization depends on a legal refusal to take sides in war. Tribunals that ascribe wartime criminality profess to be apolitical in order to support the liberal binary distinctions upon which legal institutions rest.76 As Jan Philipp Reemtsma notes, in bello questions have always invoked ad bellum debates: ‘The ongoing debate about the My Lai massacre is and has always been not only a debate about what happened in that one place in South Vietnam, but a debate about the Vietnam War, whether it was justified or not, about American foreign and military policy, and about the self-​image the American people have, want to keep, or want to transform.’77 The next section asks how the live contemporary debate about whether exceptional circumstances of ‘supreme emergency’ can ever excuse violations of the law in war might provide tools with which to contest the contemporary feminist commitment to the anti-​impunity project.

Supreme Emergency and Rape In Berlin 1945, women’s vulnerability to rape not only signalled them out as innocent civilians, but also marked their actions as politically valuable to the war effort. Taking the idea of rape as a weapon of war seriously in this way engages the broader range of factors that went into the Berlin rapes. The importance of Nazi racial ideology in the stories women told to justify abortion when they became pregnant from rape,78 as well as women’s widespread knowledge on the home front that German soldiers were engaging in mass rape on the Eastern Front, demonstrate that women identified the harm associated with their rapes in ways that were often sympathetic to what Nuremberg would understand as the unjustness of the war. Furthermore, both the mass rapes committed by the Soviets and the Allied firebombing of German cities happened primarily to women. The latter were justified on the basis that directly targeting ‘civilian’ morale was necessary in order to defeat Hitler. In light of the German appropriation of the bombings in the production of a national victimhood narrative, Heineman has provocatively asked ‘what if . . . the appropriation went the other way, at least during the war: if the bombings 76  See Duncan Kennedy, ‘The Stages of the Decline of the Public/​Private Distinction’ (1982) 130 University of Pennsylvania Law Review 1349. 77  Jan Phillip Reemtsma, ‘On War Crimes’ in Omer Bartov, Atina Grossmann, and Mary Nolan (eds), Crimes of War: Guilt and Denial in the Twentieth Century (New Press 2002) 8, 10. 78  See Grossmann, ‘A Question of Silence’ (n 65).

107

Supreme Emergency and Rape

107

caused women to take on a soldierly identity, making military sacrifices and dispensing with the conventionally female luxury of extending mourning?’79 If the rapes of German women could be rationalized in the same way as the Allied bombings, and allowing for a ‘supreme emergency’ exception, might the perpetration of rapes in some cases be legally permissible?80 Let me be clear: this question is not asked in service of a policy project that would advocate in favour of rape. Rather, the question seeks to challenge the exceptionality of rape that undergirds the feminist anti-​impunity project. Michael Walzer argues that situations where ‘our deepest values and our collective survival are in imminent danger’ constitute ‘extreme emergencies’ that justify blurring the ad bellum/​in bello distinction.81 In other words, in cases of ‘self-​defence plus’, states are permitted to pursue tactics that would otherwise violate in bello rules. Walzer’s archetype of the supreme emergency is the threat posed by Nazism that, he argues, made the Allied bombings permissible. The Soviet military was in an analogous situation to that faced by British Bomber Command, in the sense that invading Germany was necessary to win the war. Soviet command had knowledge that the invasion would most likely result in the mass rape of German women. Even though soldiers were formally ordered not to commit rape, the extent and severity of the rapes committed in the East by the Wehrmacht, compounded by the sense of general vengeance created by the horrors Germans committed against the Soviets, and the shoddy state of command control over the actions of Soviet soldiers, meant that preventing the rapes would have been nearly impossible.82 The supreme emergency paradigm disrupts the ad bellum/​in bello distinction because it posits that in exceptional circumstances ad bellum judgments can override in bello rules. But it does not question the fundamental civilian/​combatant distinction that structures the in bello sphere. The problematic gendered component of this distinction and the difficulty with which it can be cleanly deployed to categorize German women in the Second World War reinforce the analogy between Walzer’s analysis of the Allied bombings and the Berlin rapes. The point of this discussion is not to suggest that rape should become a permissible means of warfare, any more than firebombing, nuclear weapons, or terrorist tactics. I want to argue, rather, that the feminist analysis of the harm of rape and normative prescriptions for its legal treatment should be performed in the same register as these other prohibited in bello means. The deepness of the Walzerian challenge is that exposing the frailty of the ad bellum/​in bello distinction suggests that maintaining this distinction in the international criminal law universe might not be 79  Elizabeth Heineman, ‘Gender, Sexuality, and Coming to Terms with the Nazi Past’ (2005) 38(1) Central European History 41, 61. 80  For Michael Walzer, supreme emergency creates a moral paradox, wherein violating the laws in war can be both moral and immoral. In other words, while we might be able to conceive of rape in such exceptional circumstances as (legally) permissible, it would nevertheless maintain its immoral character; Michael Walzer, Arguing about War (Yale University Press, 2004) 33–​50. 81  Ibid. 33. 82  See Burds, ‘Sexual Violence in Europe in World War II, 1939–​1945’ (n 46). I am indebted to Duncan Kennedy for helping me to formulate this thought experiment.

108

108

Redeeming Rape

either a particularly moral, descriptive, or effective policy. Further, the relativity of the distinction can be framed in the same humanist language as the feminist anti-​ impunity project. As David Kennedy has asked, ‘Thinking in humanitarian terms, why shouldn’t military operations be judged by their effects, rather than by their adherence to narrow rules that might well have all manner of perverse and unpredictable outcomes?’83 Rejecting the rape ‘on all sides’ approach and attaching the criminality of rape to the unjustness of a given war might actually expand the potential range of rape victims. Focusing less on the category of civilianality and more on the politics of war would also deemphasize the gendered quality of the civilian, making it easier to describe raped women as simultaneously potentially both victims and perpetrators. On this model the political status of the crime would enhance, rather than detract from, its international wrongfulness. Feminists are likely to object to my proposed framework on the grounds that ‘rape is rape’; that sexual violence is bad under all circumstances, and should be prosecuted accordingly. In other words, notwithstanding the political or ideological commitments of perpetrators and victims of sexual violence, there remains a core harm that international criminal law should address. My preemptive response to this objection is twofold. First, as I have shown through the example of the Berlin 1945 rapes, that even if it is the case that all women experience some degree of harm from rape, it does not follow that these women would have, under all circumstances and if given the choice, preferred international prosecution of their rapes. Instead, many women may have reasonably preferred, for a host of often contradictory personal, political, and ideological reasons, to forego prosecution in favour of participation in the cultural production of a national narrative of victimization. Such national narratives may be objectionable on substantive grounds, but the crucial point is that in order to target these narratives, feminists, and the international law they advocate, would have to directly engage their politics. Secondly, I suspect that a certain feminist pacifism undergirds the rape ‘on all sides’ approach. Feminists want to separate the criminality of rape from the justness of war because this approach defers the question of whether any war could ever be just. The feminist anti-​impunity strategy is strongly linked to the desire to end war in general; the idea is ‘to suppress war by accentuating rape, and to accentuate rape by suppressing war’.84 If, in Clausewitzian terms, war is a continuation of politics by other means, then the idea that rape in war is simply a continuation of everyday rape (which itself constitutes a ‘war on women’)85 obscures the politics of the war-​ness of wartime rape. This chapter aims to reinvest legal conceptions of rape with the politics of war. Contrary to the feminist anti-​impunity project, a robust feminist pacifism would transparently commit to taking a position on the jus ad bellum. Indeed, a strong critique of the Security Council’s purportedly feminist resolutions on women in armed conflict points out the silencing of the feminist peace project and attendant feminist 83  David Kennedy, Of War and Law (Princeton University Press 2006) 90. 84  Halley, ‘Rape in Berlin’ (n 66) 84. 85  See, eg, Hsu-​Ming Teo, ‘The Continuum of Sexual Violence in Occupied Germany, 1945–​49’ (1996) 5(2) Women’s History Review 191.

109

Conclusion

109

goal of disarmament.86 In a truly ironic twist, perhaps the critique of militarism as a political option might get more traction if feminists were not so deeply committed to a depoliticized account of the rape as an international crime.

Conclusion This chapter has argued that the feminist narrative about the failure of the post-​ Second World War international tribunals to adequately prosecute sexual violence helped to mobilize political will around the idea that international criminal law after the Cold War would focus on in bello violations in order to defer the justness of war as a justiciable question. This move away from a system that predicated international wrongfulness on aggressive war, typified by the rape ‘on all sides’ approach, rejects the Nuremberg precedent. Unlike the modern tribunals, politics was key to Nuremberg law. Telford Taylor emphasized the political goals of the trials, noting that ‘although much legal paraphernalia will be and must be invoked to validate the assumption [that launching an aggressive war is an international criminal offence], the thing we want to accomplish is not a legal thing but a political thing’.87 Feminists oppose this ‘victor’s justice’ vision of international criminal law on the basis that it set up a structure wherein ‘rape was seen as qualitatively different when committed by aggressive defeated nations’,88 in the sense that rape committed by the victor is signified as ‘justifiable’ while that committed by the aggressor is judged was ‘unjustifiable’.89 However, my analysis of critical feminist histories of the Berlin 1945 rapes illustrates how, in the postwar period, many women were far less concerned with the question of the (un)justifiability, and therefore international criminality, of their rapes than they were with participating in the production of national narratives of victimization. Once women’s individual experiences of rape are made politically valuable to the state in this way, they become incompatible with a ‘guilt on all sides’ anti-​impunity approach to international justice. Further, I have argued that an international legal architecture that tied the criminality of wartime rape to the criminality of war would actually promote direct reckoning with the substantive politics of rape, rather that obscuring these in favour of essentialist ideas about women’s vulnerability and civilianality in war.

86  See Dianne Otto, ‘Power and Danger: Feminist Engagement with International Law through the UN Security Council’ (2010) 32 The Australian Feminist Law Journal 97. 87  Telford Taylor, ‘An Approach to the Preparation of the Prosecution of Axis Criminality (Early June, 1945)’ in Bradley F. Smith (ed), The American Road to Nuremberg: The Documentary Record 1944–​ 1945 (Hoover Institution Press 1982), 209 quoted in Allan A. Ryan, ‘Nuremberg’s Contributions to International Law’ (2007) 30(1) Boston College International & Comparative Law Review 55, 70. 88 Henry, War and Rape (n 42) 41. 89  Ibid. 50.

10

7 ‘Voglio una donna!’: On Rewriting the History of International Criminal Justice with the Help of Women Who Perpetrated International Crimes Immi Tallgren

‘Voglio una donna!’ Like Uncle Teo in Fellini’s Amarcord, I cried out for women. Not to embrace them like Teo, but to include them in a chapter which critically examines histories of international criminal justice. Where should I begin the search for samples of ‘women who perpetrated international crimes’? In his Monsters: History’s Most Evil Men and Women Simon Sebag Montefiore addresses very few women in its extensive portrait gallery: Yezebel, Empress Theodora, Empress Wu, Isabella the She-​Wolf of France, Catherine de’ Medici, Bloody Mary, and Elena Ceausescu.1 (One might reasonably ask were there any more in his Heroes: History’s Greatest Men and Women2?) Reading about past national and international criminal trials for conduct we would nowadays call ‘international crimes’3 in the search for ‘women perpetrators’ takes some perseverance. Whether ‘academic’ or ‘popular’ histories, or histories written by lawyers, few women appear in their pages. When they do, it is as direct victims—​killed, raped, tortured, enslaved, persecuted, detained—​or their mothers, wives, daughters, other family or community members. In terms of criminal procedure, women figure as victims, victim-​witnesses, or witnesses; not as the accused, convicted, or acquitted. Why would one search for ‘women perpetrators’, in particular? I acknowledge at the outset the challenges of attempting any research ‘about women’ today—​ decades after the post-​structuralist questioning of identity, agency, power, and 1  And a couple of others, see Simon Sebag Montefiore, Monsters: History’s Most Evil Men and Women (Quercus 2008). 2  Simon Sebag Montefiore, Heroes: History’s Greatest Men and Women (Quercus 2007). 3  This refers here to conduct today considered as the ‘core crimes’ in international law, ie serious war crimes, crimes against humanity, genocide, and aggression. ‘Voglio una donna!’: On Rewriting the History of International Criminal Justice with the Help of Women Who Perpetrated International Crimes. Immi Tallgren. © Immi Tallgren, 2019. Published 2019 by Oxford University Press.

1

‘Voglio una donna!’

111

knowledge—​without adhering to a positivist stream of scholarship which considers the category ‘women’ as unproblematic, monolithic, and foundational.4 As pertinent critics have argued since the 1980s, the efforts to shed light on ‘women’—​and gender—​easily fall into the trap of compensatory or separatist spheres, and may also come close to semi-​universal essentialism, ignoring other ‘differences’ such as ‘race’, class, sexuality, culture, nationality, religion, and the contexts in time and space.5 Those traps continue to plague even the most astute analysis of women perpetrators, too, with straightforward statements such as ‘[w]‌hile the genders are not complete opposites, they are also not identical, as women approach and respond to similar situations differently from their male counterparts’.6 At the same time, some of the fine-​tuned internal struggles and divisions in women’s history have been contained in the small island frequented by the interested women only, whereas the waste land of social sciences, including the history of international law, still appear to a great extent oblivious to women’s history or gender studies, to start with. Perhaps we lack the longue durée for a paradigm shift: the avant-​garde has moved ahead but much of the scholarship still struggles to exit ‘the traditionally received historical analyses that excluded women’7—​or, ‘women’. My impression is that this is particularly true of the tiny universe of international criminal law and its histories, with elements of criminal and international law, criminology, international relations, and a fair pinch of historical humanitarian hubris. Here then is the inspiration for this chapter in the book. As is well known, in historical, legal, sociological, anthropological, psychological, and, until recently, even in medical research, the norm for a human individual has been the man. And man was above woman. As Sonya O. Rose explains in her introduction to gender history: Before the last decades of the twentieth century and the growth and impact of scholarship on women and gender in numerous disciplines . . . it was popularly assumed that the differences between men and women were based in nature and that these ‘natural differences’ accounted for or explained the observed differences in women’s and men’s social positions and social relationships, their ways of being in the world, and the differences between them in various forms of power. Importantly, the hierarchical nature of the relations between women and men was assumed and not questioned.8

4  For a landmark in this discussion, see Denise Riley, Am I That Name? Feminism and the Category of Woman in History (Macmillan 1988). For a later analysis from a psychoanalytical point of view, see Joan Wallach Scott, The Fantasy of Feminist History (Duke University Press 2011). 5  See, eg, bell hooks, ‘Postmodern Blackness’ in Yearning: Race, Gender and Cultural Politics (1990). 6  Kimberly Allar, ‘Setting the Picture Straight: The Ordinary Women of Nazi Germany and Rwanda Who Participated in Genocide’ in Karin Auerbach (ed), Aftermath—​Genocide, Memory and History (Monash University Publishing 2015) 44, a piece of work I found most helpful. 7  Mary Kay Thompson Tetrault, ‘Rethinking Women, Gender, and the Social Studies’ (1987) 51 Social Education 170. 8  Sonya O. Rose, What is Gender History? (Polity 2010) 3.

12

112

Rewriting the History of International Criminal Justice

‘Women’ were, in the not-​too-​distant past, often perceived to be the main issue in any kind of ‘gender trouble’.9 Today, both research on men and masculinities—​in particular the field of Critical Men Studies—​and broader inquiries into the construction of the gendered difference, including institutions such as criminal justice or international law, have to some extent bypassed that confusion.10 As a discrete field of study, women’s history started out with the aim of including women in historical narratives where they had been excluded, underrepresented, or misrepresented, as a countermovement to ‘male-​defined histories’, ‘predicated on the assumption that male experience is universal’.11 Some decades later, as Joan Scott points out, researchers invested in the field can claim ‘an enormous written corpus, an imposing institutional presence, a substantial list of journals, and a foothold in popular consciousness’.12 Against this background, this chapter is an inquiry into the possibilities of ‘doing critical history’ with the strategic moves associated with women’s history or feminist history. As the terrain of experimentation I have chosen the representation of ‘women perpetrators’ in histories of international criminal law. The chapter then is not about knowing more about the particular women who perpetrated crimes, as such, or analysing the (very pertinent) questions a historian, sociologist, or criminologist would ask about how particular women in their particular contexts got into the positions in which they committed their crimes, that is, in which realms the legal systems in the various contexts found their defendants. Nor am I trying to pursue research that would have any aspirations towards changing the way ‘women’ in general are considered. In this chapter, much of the attention is devoted to the corrective quest of ‘inclusion in history’ that which has previously been excluded. In other contexts, this quest is analysed in a few contributions to this volume.13 In this chapter, I examine the paradoxes that the quest for inclusion entails and how apparently innocuous historiographical choices are utterly political. This is because, as I shall discuss, it is not just the disciplinary methodologies and biased strategies of truth that keep women as perpetrators out of the picture both in ‘academic’ and ‘popular’ histories of international criminal law, but also explicit choices. The chapter thus flags parallel desires, both to write more ‘complete’ histories where women are present while conscious of the limits of the exercise and to imagine what their absence—​and occasional presence—​may have meant and still means both to the construction, salience, and legitimacy of the ‘field’ of international criminal law and the various feminism(s). The chapter proceeds in a multidisciplinary landscape of open questions, with at 9  I am hinting, of course, to the cult piece by Judith Butler, Gender Trouble (Routledge 1990). On the category of ‘women’ as agents of violence, see also Coline Cardi and Geneviève Pruvost, ‘Thinking Women’s Violence’ (2015) 5 History of the Present 200–​16. 10  See, eg, Michael S. Kimmel and Jeff Hearn, Handbook of Studies on Men and Masculinities (Sage 2005); Judith Gail Gardam, ‘The Law of Armed Conflict: A Gendered Regime’ (1993) 25 Studies in Transnational Legal Policy 171. 11  Mary Kay Thompson Tetrault, ‘Rethinking Women’ (n 7) 170. 12  Wallach Scott, The Fantasy of Feminist History (n 4) 24. 13  See the contributions by Christopher Gevers, Emily Haslam, and Kamari Maxine Clarke.

13

‘Rapacious Beasts of the Dog Kind’?

113

times uneasy proximity of language between discourses of law, history, criminology, and media. I start by discussing what might motivate the desire to either elucidate or obscure the role of women as perpetrators of international crimes. I address the discursive practices of ‘becoming’ a woman perpetrator, that is, the tropes of representing individual histories of a woman accused of an ‘international crime’. To address this, I make an excursion into the scholarship on German National-​Socialist criminality that has, from the 1980s on, tackled the ‘exceptionality’ of women perpetrators with more aplomb than current international criminal law studies. I conclude by suggesting an intuitive explanation for the derivative histories of ‘women perpetrators of international crimes’, whilst pointing to the possibility of another kind of history.

‘Rapacious Beasts of the Dog Kind’? In criminological research the basic finding is that men offend at significantly higher rates than women, and this difference holds across different offences, times, and space.14 Yet some women do commit crimes, also very violent crimes, including those of an ‘international’ character. However, ‘while male violence is frequently normalised and even expected in certain situations, female violence both repels and attracts’, to quote Kimberly Allar.15 This repulsion vs. attraction seems to dominate the way in which women perpetrators are represented. Were one to try to impose some order when addressing information on women known to have committed what today are referred to as ‘international crimes’, various taxonomies could be entertained, but not without the ‘ambiguities, redundancies and deficiencies’16 that are the curse of all classifications. Women could be divided chronologically according to ‘generations’: before World War Two, post-​ war, 1990s, the present, etc. They could be organized according to geographical contexts or ‘origins’: as ‘Nazis’, ‘Slavs’, ‘Asians’, ‘Africans’, ‘Chechens’, etc. A focus on the individual would give lists based on age, marital status, education, profession, religion, sexual orientation, etc. Focusing rather on the types of crimes and types of responsibility for crimes would direct attention to planners, leaders, those hands-​on perpetrators of violent acts, as superiors in military forces or civilian government, as part of an individual or collective initiative, those aiding or abetting, etc. What kind of continuities and breaks could be observed in histories of women perpetrators? No women were among those who stood accused in the emblematic first ‘international’ criminal trials, that is, the International Military Tribunal in Nuremberg (IMT) and the International Military Tribunal for the Far East in Tokyo 14 See, eg, Hollie Nyseth Brehm, Christopher Uggen, and Jean Damascène Gasanabo, ‘Age, Gender, and the Crime of Crimes: Toward a Life-​Course Theory of Genocide Participation’ (2016) 54 Criminology 713–​43, 717. 15  Allar, ‘Setting the Picture’ (n 6) 21. 16  Borges’ story of the Celestial Emporium of Benevolent Knowledge with its ‘Rapacious Beasts of the Dog Kind’ is likely to pop up in the mind of many readers here, Jorge Luis Borges, ‘The Analytical Language of John Wilkins’ in Other Inquisitions 1937–​1952 (University of Texas Press 1993).

14

114

Rewriting the History of International Criminal Justice

(IMTFE). Women indicted at the various war crimes trials by national courts or the occupying states after World War Two were mainly guards, nurses, staffers, or wives. The second wave of trials for international crimes starting from the 1990s included the trial at the International Criminal Tribunal for Former Yugoslavia (ICTY) of Biljana Plavšić, former president of Republika Srpska. Pauline Nyiramasuhuko, former Minister for Family Welfare and the Advancement of Women in Rwanda, was the only woman convicted at the International Criminal Tribunal for Rwanda (ICTR). Other women have been convicted in Bosnian courts, and even more so in Rwanda.17 The Extraordinary Chambers in the Courts of Cambodia prosecuted Ieng Thirith, but the trial was abandoned because of her dementia.18 The International Criminal Court (ICC) unsealed an arrest warrant for Simone Gbagbo, wife of the former President and ICC detainee, Laurent Gbagbo.19 Two trials subsequently took place against her in the Ivory Coast. Many other names could be added to this list of the most obvious, depending on the taxonomy chosen, and the desire to collect, list, categorize, and organize the information available on past perpetrators. Some scholarship is available on these various (types of ) perpetrators, with more written on recent ones20 than past.21 That being said, even with regard to the more recent practice of international criminal law since the early 1990s, there are more academic articles on women perpetrators than there are women perpetrators indicted in international criminal trials. Not that there is much scholarship on women perpetrators, either. Research is scarce on how the identity, agency, and experience of ‘women perpetrators of international crimes’ have been construed. Not only then are women seldom accused of international crimes but they also figure in the margins of legal, historical, criminological, or anthropological attention to perpetrators of international crimes.22 17  The number of women tried in Rwanda has been estimated to 3000, Laura Sjoberg and Carol Gentry, Mothers, Monsters, Whores: Women’s Violence in Global Politics (Zed Books 2007) 160. See also Carrie Sperling, ‘Mother of Atrocities:  Pauline Nyiramasuhuko’s Role in the Rwandan Genocide’ (2006) 33(2) Fordham Urban Law Journal 637 (28); Nicole Hogg, Women’s Participation in the Rwandan Genocide: Mothers or Monsters? 69, 75. 18  Paul Armstrong, ‘ “First Lady” of Khmer Rouge Ruled Unfit for GenocideTrial’, CNN (13 September 2012), http://​articles.cnn.com/​2012-​09-​13/​asia/​world_​asia_​cambodia-​khmer-​ rouge-​ieng-​thirith. 19  Prosecutor v Simone Gbagbo, Case No ICC-​02/​11-​01/​12, Warrant of Arrest, 9 (29 February 2012), https://​www.icc-​cpi.int/​pages/​record.aspx?uri=1344439. 20  See, eg, Sara Brown, ‘Female Perpetrators of the Rwandan Genocide (2014) 16 International Feminist Journal of Politics 448–​69; Lisa Sharlach, ‘Gender and Genocide in Rwanda:  Women as Agents and Objects of Genocide’ (1999) Journal of Genocide Research 1: 387–​99; Chris Coutler, ‘Female Fighters in the Sierra Leone War: Challenging the Assumptions?’ (2008) 88 Feminist Review 54–​73; Shana Tabak, ‘False Dichotomies of Transitional Justice: Gender, Conflict and Combatants in Colombia’(2011) 44 NYU Journal of International Law and Policy 103–​63; Adam Jones, ‘Gender and Genocide’ (2002) 4 Journal of Genocide Research 65-​94; Mark A. Drumbl, ‘ “She Makes Me Ashamed To Be A Woman”: The Genocide Conviction Of Pauline Nyiramasuhuko, 2011’ (2013) Michigan Journal of International Law 559–​603. For discussion, see also Karen Engle, ‘Judging Sex in War’ (2008) 106 Michigan Law Review 941–​1641. 21  See, eg, Ulrike Weckel and Edgar Wolfrum, ‘Bestien’ und ‘Befehlsempfänger’: Frauen und Männer in NS-​Prozessen nach 1945 (Vandenhoeck & Ruprecht 2003); Nicole Hogg, ‘Women’s Participation in the Rwandan Genocide: Mothers or Monsters?’ (2010) 92 International Review of the Red Cross 69–​102. 22  See, eg, Augustine Brannigan, Beyond the Banality of Evil (Clarendon Press 2013); Claus-​Christian W. Szejnmann, ‘Perpetrators of the Holocaust: A Historiography’ in Olaf Jensen and Claus-​Christian

15

‘Rapacious Beasts of the Dog Kind’?

115

‘The margins’ is a familiar realm for women and their histories. Familiar too is the claim of women’s exclusion. As the London Feminist History Group argued, ‘women have not just been hidden from history. They have been deliberately oppressed. Recognition of this oppression is one of the central tenets of feminism.’23 Various subsequent moves have taken place to include women in the master narratives of history, to make women ‘visible’.24 Mary Kay Thompson Tetreault describes five phases—​not sequential or linear but rather ‘a series of intersecting circles, patches on a quilt’—​‘of thinking about women’: male-​defined history, contribution history, bifocal history, histories of women, and, as the most advanced and the most challenging approach, histories of gender.25 With respect to the ‘women perpetrators of international crimes’ discussed in this chapter, the intrigue of inclusion (or exclusion) culminates at two levels. First there are the discursive practices involved in law, legal institutions, and media that take place in the context of the time of the crimes, through criminal trials, media, victims’ representation, and so forth, ‘producing’ (or not) women perpetrators—​the logic not being different from how such discursive practices would produce any kind of perpetrator. Second, there is the later phase of re-​producing the perpetrator when the historian (or lawyer, judge, or professor teaching international criminal law) looks back into ‘the past’ to find and represent perpetrators of international crimes. Even if these two ways of ‘becoming’ women perpetrators of international crimes may take place in similar ways, they are disconnected. A perpetrator may be hailed in the moment, but excluded in the historian’s reconstruction of that moment later. Nevertheless, at both levels we may wonder whether women’s apparent absence as perpetrators was because they engaged so much less in conduct deemed to be ‘crimes’ or whether it related to their subsequent scarce and reductive representation both in trials and in histories; in lesser roles, with less guilt, and with less or no punishment. How would one know, today or ever? This is the question all contributory or compensatory histories have to deal with, not only in women’s but also in postcolonial or ‘global’ histories. Even the broadest imaginable empirical studies, combining quantitative and qualitative methodologies, could be critically questioned: perhaps the sources available as such are already biased, belittling, distorting, or omitting information on women, so that the elimination of competing interpretations appears irrefutable. Scholars in women’s history have pointed out how they have to cope with a ‘double marginalisation’ of women—​in their life context and in the sources that remain—​as well as an intertwining of the public and private in the available sources, and to which value judgements of ‘legitimacy’ are attached.26 W. Szejnmann, Ordinary People as Mass Murderers: Perpetrators in Comparative Perspective (Palgrave Macmillan 2008) 25–​54. 23  London Feminist History Group, The Sexual Dynamics of History: Men’s Power, Women’s Resistance (London Pluto 1983) 2. 24  See, eg, Renate Bridenthal, Claudia Koonz, and Susan Stuart, Becoming Visible—​Women in European History (Houghton Mifflin Company, 2nd edn, 1987). 25  See, Thompson Tetrault, ‘Rethinking Women’ (n 7) 173. 26  See, eg, Rosemary Auchmuty, ‘Recovering Lost Lives: Researching Women in Legal History’ in Linda Mulcahy and David Sugarman (eds), Legal Life Writing: Marginalized Subjects and Sources (Wiley

16

116

Rewriting the History of International Criminal Justice

The first observation to make here is that the modes and rationales of how women perpetrators of international crimes are produced and reproduced first by trials and then by histories share the elements of selection and discovery (by the legal institutions, media, historians, and academic scholarship), and hiding, forgetting, or falling into desuetude. The second observation is that the inclusion/​exclusion intrigue is of course less technical in character than it may seem. No ex post facto taxonomy manages to breathe life into subjects that were not deemed important enough to be considered perpetrators of crimes from the outset—​or could it resuscitate them by corrective movements, by ‘rewriting’? In any case, if the assumption is that the discursive practices that ‘produce’ international crimes and their perpetrators exclude women because of their lack of power, one might expect a jump towards higher numbers of women accused, now that (some) women do lead nations and command armies. The weapons technologies today certainly provide abundant solutions for conduct warfare where physical force is not essential. There are then fewer sociological or physical limits to women’s role as perpetrators. As cynical as it may sound here, at the moment we may have to await tomorrow’s histories to see whether the structures producing ‘international perpetrators’ yield to those sociological, political, and technological changes. Gerda Lerner refers to compensatory or contributory history as studying what she calls ‘women worthies’;27 women whose achievements did not differ significantly in kind from those of men in the same context. Clearly that should not then be the end of the story for those committed to women’s history, as Thompson Tetreault’s phases point out (see above). But the idea of contributory history appears in a different and potentially more intriguing light when the notable women whose agency is emphasised are perpetrators of serious crimes—​not the first women international judges, for example. The same political projects that call for the inclusion of the judges in histories may wish to exclude the perpetrators. As I turn to discuss, at times one would rather not know more about women in history.

‘Not Our Sisters’ I can’t get that picture of England out of my head because this is not how women are expected to behave. Feminism taught me 30 years ago that not only had women gotten a raw deal from men, we were morally superior to them. When it came to distinguishing right from wrong, the needle of our compass always pointed to true north.28

Blackwell 2015); Sue Morgan (ed), The Feminist History Reader (Routledge 2006); Teresa A. Meade and Merry E. Wiesner-​Hanks (eds), A Companion to Gender History (Blackwell 2004). 27  Gerda Lerner, The Majority Finds Its Past: Placing Women in History (Oxford University Press 1979)  145–​6. 28  Mary Jo Melone, We’ve come a long, and wrong, way (May 2004), quoted by Sheri Ann Labenski, The Importance of Women as Villains and Violators: Scenes from the ICTY, the ICTR, and Abu Ghraib, Master’s thesis, June 2013, American University of Cairo.

17

‘Not Our Sisters’

117

‘The crimes of which these women were convicted ought to be unimaginable, and will remain, here at least, unprintable.’ 29 This sentence concludes, somewhat abruptly, the succinct treatment devoted to women perpetrators of international crimes on the IntLawGrls—​a US-​based website on women and/​on international law—​blog series on ‘Women in Nuremberg’. Whereas women lawyers amongst the prosecutorial staff and defence counsels, as well as staffers, interpreters, and journalists receive a detailed and celebratory description on the website, the very few women accused at the Nuremberg follow-​up proceedings and in other trials by the US or UK occupation authorities seem to complicate the efforts to find the first women in histories of the first international trials. Here one encounters the ‘understandable wish’ (id.) on the part of scholarship to identify only with the positive and until recently underestimated accomplishments of women in history. Other scholars, by contrast, are intentionally striving to break the obscurity, if not omertà, surrounding women’s criminality. 30 In the German context, subsequent waves of active discussion on Nazi criminality have sought—​ even if not necessarily found—​an end to ‘the rituals of innocence in the women’s movement and in women’s history’.31 In the international criminal law scholarship starting from the mid-​1990s, this turn is still in the making. As the IntLawGrls blog acknowledges, ‘we have understandably been loath [sic] to claim these women as our own. But they exist . . . Those who stood trial for war crimes have an undeniable, if unfortunate, international prominence, and at times their story too must be told.’32 Lurid stories do get told, speaking for the attraction of women’s violence, in particular of the paradigmatic birth context of international criminal law, that is, Nazi Germany: ‘Nightmare Creature’, ‘The Angel of Death’, ‘Bloody Brigitte’, ‘The Sadistic Beast and Queen of the Realm of Dead’, ‘The Evil Doctor’ . . . These are subtitles of chapters in a recent study, devoted to biographies of German women brought to criminal responsibility after the Second World War. 33 Blutige Brigide, as Hildegard Lächert was nicknamed, was a guard who served in Ravensbrück, Auschwitz, and Majdanel. Lächert allegedly abused prisoners by beatings, whippings, and attacking them with her dog. She took part in selecting victims for the gas chamber, and was an accomplice to murders. She found guilty in both the 1947 Auschwitz trials and the third Majdanek trial (1975–​81). Beyond the claims of Hildegard Lächert’s brutality and sadism that are frequently levelled at Nazi guards, Lächert’s maternity is central to the comments. Wendy Sarti reports how Lächert became a mother at eighteen and had another child at the age of twenty-​three, both out of non-​marital relationships.34 To quote Sarti: ‘At first, one would think that a 29  http://​www.intlawgrrls.com/​2007/​07/​not-​our-​sisters.html. 30  For the 1990 conference in Würzburg on ‘Participation and Resistance: The Problematization of National Socialism in Recent Women’s Studies’ see Lerke Gravenshort and Carmen Tatschmurat (eds), Töchter-​Fragen, NS-​Frauen-​Geschichte (Kore 1990). 31 Ibid. 32  http://​www.intlawgrrls.com/​2007/​09/​women-​at-​nuremberg-​defendants.html. 33  Wendy A. Sarti, Women and Nazis: Perpetrators of Genocide and Other Crimes During Hitler’s Regime, 1933–​1945 (Academica Press 2011). 34  Ibid. 127.

18

118

Rewriting the History of International Criminal Justice

mother of two young children could not possibly want to kill any human beings, especially children.’35 Sarti also wonders what happened to her children while she was in prison: ‘It can be assumed that the parent(s) took on raising the children once she was imprisoned.’36 Amongst the portraits of handsome women wearing black leather boots and Nazi uniforms, to whom adjectives such as ‘vicious’, ‘cruel’, ‘sadistic’, or ‘perverse’ are often employed, that of Irma Grese, ‘The Angel of Death’, is the most notorious. She was a young Aufseherin, a camp guard at Ravensbrück, Auschwitz-​Birkenau and Bergen-​Belsen. In the accounts by survivors from the camps, she appears as a devilish beauty, taking sadomasochist pleasure in her cruelty.37 She was sentenced to death at the Belsen trial in the British occupation zone in November 1945. Her young age and her looks brought her sensational media attention during her trials, where she stood out from other women who ‘traversed the range from ugly to repellent’.38 Her outfits—​complete with a riding whip, cane, and pistol—​have made of her a legendary character also in pornographic entertainment, in several books and films. Herta Oberheuser, ‘The Evil Doctor’, was a dermatologist found guilty of war crimes and crimes against humanity by US military judges in the Doctors’ Trial at Nuremberg in 1948, one of the Control Council Act number 10 trials by the US occupation authorities in Germany.39 Oberheuser was the only woman accused in the Doctors’ Trial. The tribunal found that she had conducted medical experiments on inmates at the Ravensbrück camp. She had also participated in selections of inmates to be executed in the gas chambers. She was sentenced to twenty years’ imprisonment. Oberheuser was released from prison in 1952 by the German authorities. She resumed medical practice, but soon had her licence revoked on account of camp survivors’ protests. Hildegard Lächert was a fallen mother, Irma Grese a seducing but beastly whore, and Herta Oberheuser a shameful monster sullying her medical profession. Their caricatured profiles rely on gendered stereotypes of violent or otherwise deviant women, recognizable also beyond the realm of Nazi perpetrators.40 One could certainly add other recurrent profiles, such as a decadent or perverse (Nazi) wife of a powerful man, the most prominent being Ilse Koch, wife of the commandant of Buchenwald.41 Liesel Willhaus, wife of commandant Gustav Willhaus in Janowska, 35  Ibid. 129. 36  Ibid. fn 5. 37  See Olga Lengyel, Five Chimneys: The Story of Auschwitz (Mayflower 1972); Fania Fénélon, Playing for Time (Berkley 1979) 177, 194–​212, 244–​50. 38  Quoted by Daniel Brown, The Beautiful Beast: The Life and Crimes of SS-​Aufseherin Irma Grese (Golden West Historical Publications 1996) 70. 39  See, eg, Kevin Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford University Press 2011). 40  See Carol Gentry and Laura Sjoberg, Beyond Mothers, Monsters, Whores: Thinking About Women’s Violence in Global Politics (Zed Books 2015). 41 See Alexandra Przyrembel, ‘Der Bann eines Bildes—​ Ilse Koch, die “Kommandeuse von Buchenwald” ’ in Insa Eschebach, Sigrid Jacobeit, and Silke Wenk (eds), Gedächtnis und Geschlecht: Internationale Studien zur Rezeptionsgeschichte des Nationalsozialismus und seiner Verbrechen (Frankfurt a.M. 2002) 245–​67.

19

Constructing the Exceptional through Stereotyping

119

a work camp near Lemberg, allegedly killed for leisure and her own pleasure. She is reported to have made a show of shooting prisoners working in the garden, just like rabbits, when guests came over to visit the family and sat on the porch of their house.42 As perpetrators and wives, Koch and Willhaus are in a notorious but often curiously nameless company: ‘Many wives of oppressive dictators, for example, such as the wives of Mao Tse-​tung, Slobodan Milosevic and Nicolae Ceausescu became ignominious in their own right.’43

Constructing the Exceptional through Stereotyping Stereotypes of mothers, whores, monsters, and vicious wives of important men both differ from each other and partly coalesce, each striking several chords with a mythological ‘womanhood’, expressed in various gendered notions of femaleness or femininity which may have a certain universality.44 Yet that is not my focus here. Nor I am likely to surprise anyone with the claim that stereotypes of women perpetrators do indeed exist—​just as there are stereotypes of men perpetrators.45 More interesting potentially is to ask how far such stereotypes have had or still have an effect not only in popular culture, as one might think at first, but also in the fields of history, criminology, and law, shaping the understanding of ‘women perpetrators’. But what do I mean here by stereotypes or stereotyping? The reputation of these notions is deplorable. In media studies, the predominant view of stereotypes sees them as ‘rigid, simplistic, overgeneralized and erroneous’, at worst forming ‘the basis for negative or hostile judgements, the rationale for exploitative, unjust treatment, or the justification for aggressive behaviour’.46 And yet the exclusively negative view of stereotypes has not necessarily always been the one that prevails. The term stereotype was introduced into the terminology of social sciences by Walter Lippman’s Public Opinion (1922), a classic of US media studies.47 Lippmann conceptualized stereotype in two contrasting ways. In the first sense, he saw them as inadequate and biased, contrasting stereotyping with the more positive connotation of ‘individualised understanding’.48In the second sense, stereotyping was for Lippmann a necessary mode of processing information, especially in highly differentiated societies, an inescapable way of creating order out of ‘the great blooming, buzzing confusion of the outer world’.49 Stereotyping was, in this second sense, merely a way, in itself 42  Wendy Lower, Hitlers Furies: German Women in the Nazi Killing Fields (Vintage Books 2014) 134. 43  Alette Smeulers and Fred Grünfeld, International Crimes and Other Gross Human Rights Violations (Martinus Nijhoff Publishers 2011) 326 (italics added). On anonymity of women perpetrators in the post-​Second World War Allied repression, see also Allar, ‘Setting the Picture’ (n 6) 34–​5. 44  See John E. Williams and Deborah L. Best, Measuring Sex Stereotypes: A Thirty Nation Study (Sage Publications, rev. edn, 1990). 45 See, eg, Sofia Stolk, A Solemn Tale of Horror:  The Opening Statement of the Prosecution in International Criminal Trials (doctoral thesis, Vrije Universiteit Amsterdam 2017). 46  Michael Pickering, ‘The Politics and Psychology of Stereotyping’ (1995) 17 Media, Culture & Society 691–​700, 691. 47  Ibid. 692. 48  Walter Lippman, Public Opinion (The Free Press 1922) 59. 49  Ibid. 55.

120

120

Rewriting the History of International Criminal Justice

neutral, of making sense of the world, of typifying and representing. Interestingly, the pioneering Lippmann was equally sensitive to the ideological aspect of using stereotypes, as ‘the projection upon the world of our own sense of our own value, our own position and our own rights’,50 and to the manner in which stereotypes work as social control: ‘They are the fortress of our tradition, and behind its defenses we continue to feel ourselves safe in the position we occupy.’51 Nor are stereotypes totally foreign to Max Weber’s ideal types, or to later conceptualizations of categorization in the social sciences.52 As Richard Jenkins puts it, ‘whether for sociological purposes or in everyday life, categorization and knowing the world are inseparable’.53 Contexts and disciplines do differ of course, but what seems to remain is the difficulty of claiming a validity in terms of a reproduction of or correspondence with social reality. To quote Kenneth Prandy, ‘in everyday life stereotypes allow people to avoid confronting complexities and contradictions in their experience; in intellectual life ideal types allow theories to preserve themselves from empirical challenge’.54 Writing in 1922, Lippmann was yet to find his anecdotic examples of the limits of perception anchored in cultures and contexts from the institutional practice of international criminal law. My guess is that he would have found the empirical material rich and more than adequate. Instead, he used the closest to hand, the context of the First World War and the Versailles Treaty negotiations, asking, [o]‌f the great men who assembled at Paris to settle the affairs of mankind, how many were there who were able to see much of the Europe about them, rather than their commitments about Europe? Could anyone have penetrated the mind of M. Clemenceau, would he have found there images of the Europe of 1919, or a great sediment of stereotyped ideas accumulated since 1871? . . . If a junker blustered, that was an authentic German; if a labor leader confessed the guilt of the empire, he was not an authentic German.55

One hundred years on, we may ponder the extent to which international criminal justice, and the way it is dealt with in various contemporary professional and academic contexts, is an operational area based on stereotypes of Lippmann’s ‘great blooming, buzzing confusion’ of ‘reality’.56 On the very broad sets of temporal, territorial, cultural, social, ideological, factual, historical contexts perceived by individuals of various professions and backgrounds are constructed the (criminological, criminal policy, legal, political, bureaucratic) modes of operation, modes whose correspondence with social reality one is scarcely in a position—​or instructed—​to diligently verify and take into account. In such a heterodox domain of intense political, legal, bureaucratic institutional activity where scales, sizes, and perspectives

50  Ibid. 64. 51 Ibid. 52  See, eg, Kenneth Prandy, ‘Ideal Types, Stereotypes and Classes’ (2002) 53 British Journal of Sociology 583–​601; Max Weber, ‘Objectivity in Social Science and Social Policy’ in Edward A. Shils and Henry A. Finch, ed and trans, The Methodology of the Social Sciences (The Free Press 1904/​1949). 53  R. Jenkins, ‘Categorization:  Identity, Social Process and Epistemology’ (2000) 48(3) Current Sociology 8. 54  Prandy, ‘Ideal Types’ (n 52) 589. 55 Lippmann, Public Opinion (n 48) 55. 56  Ibid. 96.

12

Behind Stereotypes of Women Perpetrators

121

interlope and overlap, the language of ‘stereotype’ may capture a key aspect of the operational modus. How far such stereotyping—​at worst a mixture of simplification, deep-​held prejudice, and inexcusable ignorance—​is at work with regard to racializing the perpetrators (and victims) both in the present institutional practice of international criminal justice and in its histories, has recently been addressed in excellent commentaries.57 On women, less so.

Behind Stereotypes of Women Perpetrators By their ‘unimaginable . . . and unprintable’ deeds, as the IntLawGrls’ blog called them, the perpetrator women entered into flagrant contradiction of what is expected of a woman. As with the accounts of international criminal law discussed in this volume, these expectations of course have a history. The societal and cultural norms on ‘womanhood’ could be presented both in terms of strong continuities and rapid changes, depending on the temporal, geographical, and social context. What follows here are just three snapshots in particular times and places within that history. First, as Barbara Welter argued in a landmark article,58 the nineteenth-​century North American women’s lives were influenced by a cultural ideology prescribing that women should live by and for the virtues of ‘piety, purity, submissiveness, and domesticity. Put them together and they spelled mother, daughter, sister, wife—​woman’. Women’s universe—​in the class and ‘race’ and temporal context Welter wrote about—​consisted of marriage, motherhood, home, and church, whilst the rest befell on men. Welter coined her term, the ‘Cult of True Womanhood’,59 as a critical stance on the ‘separate spheres’ of women and men. The metaphor of ‘sphere’ has been a key trope in the historical discourse on women, grounded not only in culture as Welter recognized, but also in psychology and property relations.60 It has also done service in the interpretations of distinctive women’s cultures.61 Second, in the early and mid-​twentieth century, in the geographical and ideological context that later became the emblematic and paradigmatic crime scene in histories of international criminal justice, that is, Nazi Germany, marriage and housewifery mattered far less, as such. ‘Aryan’ German women’s priorities were expected to lie in motherhood in the literal sense of diligent procreation, as well as caring for the needs of the nation and the party. For other women (and men), the

57  See Christopher Gevers, ‘Africa and International Criminal Law’ in Kevin Jon Heller, Jens Ohlin, Sarah Nouwen, Frédéric Megret, and Darryl Robinson (eds), The Oxford Handbook of International Criminal Law (Oxford University Press, forthcoming 2019); Kamari M. Clarke, Abel S. Knottnerus, and Eefje de Volder (eds), Africa and the ICC: Perceptions of Justice (Cambridge University Press 2016). 58  Barbara Welter, ‘The Cult of True Womanhood: 1820–​1860’, (1966) 18 American Quarterly 152. 59 Ibid. 60  For discussion, see, eg, Linda Kerber, ‘Separate Spheres, Female Worlds, Woman’s Place: The Rhetoric of Women’s History’ in Toward an Intellectual History of Women (The University of Carolina Press 1997) 159–​99. 61  See Carroll Smith-​Rosenberg, ‘The Female World of Love and Ritual: Relations between Women in Nineteenth-​Century America’ (1975) 1 Signs  1–​29.

12

122

Rewriting the History of International Criminal Justice

racist Nazi regime imposed violent measures of anti-​natalism.62 The influence of church was replaced and surpassed by the Nazi party.63 As with power in many other political systems, Nazi authority as such validated itself by its distance from women and the feminine.64 Third, at the end of the twentieth century, the negotiations over the Rome Statute for an International Criminal Court negotiations began in New York. At the same time, the 1995 Beijing Declaration on Women affirmed that ‘[l]‌ocal, national, regional and global peace is attainable and is inextricably linked with the advancement of women, who are a fundamental force for leadership, conflict resolution and the promotion of lasting peace at all levels.’65 The Rome Statute, concluded in 1998, came to include rules on women with regard to the composition of the court and in the staff of the institution, a definition of ‘gender’, broader criminalization of sexual crimes, special protection measures in investigating sexual and gender violence, etc.66 The Rome Statute, as well as jurisprudence of the ad hoc tribunals for the Former Yugoslavia and for Rwanda were often held up as a major victory for ‘feminism’.67 My sketch reads as a linear progress narrative of how expectations towards ‘women’ have gradually changed, the images of women leaving the ‘private sphere’ and gravitating towards the more public and political ‘sphere’ occupied by men, which gradually becomes a shared one. Even if the context is by definition international, the narrative is culturally and politically situated. At its culmination, the Beijing Declaration mentions women’s ‘leadership’, a strong symbol of progress. There remains, however, an element of continuity in the use of the metaphoric ‘separate sphere’, in Linda Kerber’s phrase, ‘a trope that hid its instrumentality’, even from those who employed it.68 Women may enter men’s world, but they remain distinctively different. ‘Are women peaceful?’ Hilary Charlesworth asked in the context 62 See Gisela Bock, ‘Equality and Difference in National Socialist Racism’ in Joan Scott (ed), Feminism and History (Oxford University Press 1996) 267–​90. 63  Jill Stephenson, Women in Nazi Germany (Routledge 2001)16. 64 See Renate Bridenthal, Atina Grossmann, and Marion Kaplan, When Biology Became Destiny: Women in Weimar and Nazi Germany (New Feminist Library 1984). 65 Fourth World Conference on Women, Beijing Declaration (1995), http://​www.un.org/​ womenwatch/​daw/​beijing/​platform/​declar.htm 66  The Rome Statute of the International Criminal Court (1998). 67  For a rich discussion, see, eg, Valerie Oosterveld, ‘The Definition of “Gender” in the Rome Statute of the International Criminal Court:  A Step Forward or Back for International Criminal Justice?’ (2005) 18 Harvard Human Rights Journal 55–​84; Kelly Askin, ‘Gender Crimes Jurisprudence in the ICTR: Positive Developments’ (2005) 3 Journal of International Criminal Justice 1007–​18; Catherine MacKinnon, ‘The ICTR’s Legacy on Sexual Violence’ (2008) 14 New England Journal of International and Comparative Law 211–​20; Kimi Lynn King and Megan Greening, ‘Gender Justice or Just Gender? The Role of Gender in Sexual Assault Decisions at the International Criminal Tribunal for Former Yugoslavia’ (2007) 88 Social Science Quarterly 1049–​71. For critical views, see Janet Halley, ‘Rape in Berlin: Reconsidering the Criminalisation of Rape in the International Law of Armed Conflict’ (2008) 9(1) Melbourne Journal of International Law 78–​124; Janet Halley, ‘Rape in Rome: Feminist Interventions in the Criminalization of Sex-​Related Violence in Positive International Criminal Law’ (2008) 30(1) Michigan Journal of International Law 1–​123; Karen Engle, ‘Feminisms and Its (Dis) contents: Criminalizing Wartime Rape in Bosnia and Herzegovina’ (2005) 99 The American Journal of International Law 778-​953. 68  Kerber, ‘Separate Spheres’ (n 62) 187.

123

Behind Every Perpetrator Woman

123

of peace-​building, putting her finger on the persistent expectation. 69 The dream of an alternative, pacifist society created by women, local or global, still figures as one of the strivings of feminism(s), also within international law.70 Moral inclinations among women towards the care and protection of life may no longer be as eagerly defended by biology as they have been by Francis Fukuyama: ‘What is bred in the bone cannot be altered easily by changes in culture and ideology’.71 The essentialist assumptions nevertheless still appear powerful, and breaking the taboo certainly hurts. ‘When we lose the mothers to the dark side, all is lost,’ Sjöberg and Gentry write on Nyiramasuhuko’s deviance, and they are not alone in the sentiment.72 From Virginia Woolf’s Three Guineas to Susan Griffin’s The Roaring Inside Her73 and Judith Gardam’s remarkable work on the law of armed conflict, uncertainty remains as to whether ‘women have something different to offer, a view of the world incompatible with the violence of armed conflict’.74 Next to the ‘Thatcher problem’, it is women perpetrating serious, large-​scale crimes who forcefully challenge such hopes. Yet even in crime, women do not seem to really stand alone, as I shall now discuss.

Behind Every Perpetrator Woman Then a woman prisoner from Auschwitz, Severina Shmaglevskaya, described the treatment of women and children there. Babies born in the camp were taken away immediately and never seen again. She demanded with suppressed bitterness, ‘In the name of all the women of Europe who became mothers in concentration camps, I would like to ask German mothers, “Where are our children now?” ’75 69  Hilary Charlesworth, ‘Are Women Peaceful? Reflections on the Role of Women in Peace-​building’ (2008) 16(3) Feminist Legal Studies 347–​61. 70 Hilary Charlesworth, Christine Chinkin, and Shelley Wright, ‘Feminist Approaches to International Law’ (1991) 85 The American Journal of International Law 613–​45; Hilary Charlesworth, ‘Alienating Oscar? Feminist Analysis of International Law’ in Dorinda G. Dallmeyer (ed), Reconceiving Reality: Women and International Law, Studies in Transnational Legal Policy No 25, ASIL, Washington, D.C., 1993; Barbara Ehrenreich, ‘Feminism’s Assumptions Upended’ (2007) 24(1) South Central Review  170–​3. 71  See Sara Ruddick, Maternal Thinking: Towards a Politics of Peace (The Women’s Press 1989); Francis Fukuyama, ‘Women and the Evolution of World Politics’ (1998) 77 (5) Foreign Affairs 24–​40. In contrast, Joshua Goldstein asks, ‘why warfare is virtually an all-​male occupation’ and replies that ‘biology provides diverse potentials, and cultures limit, select, and channel them.’ Joshua Goldstein, War and Gender: How Gender Shapes the War System and Vice Versa (Cambridge University Press 2001) 169. 72  Sjöberg and Gentry, Mothers, Monsters (n 17) 169 (emphasis in the original).For discussion, see Jodi York, ‘The Truth about Women and Peace’ in Lois Ann Lorentzen and Jennifer Turpin (eds), The Women and War Reader (New York University Press 1998) 19–​25. 73  Virgina Woolf, Three Guineas (Hogarth Press 1938); Susan Griffin, Women and Nature:  The Roaring Inside Her (Counterpoint, revised 2nd edn, 2016). 74  Judith Gail Gardam, ‘The Law of Armed Conflict: A Gendered Regime?’ in Dorinda G. Dallmeyer (ed), Reconceiving Reality: Women and International Law, Studies in Transnational Legal Policy No 25, (ASIL 1993) 174–​5; Judith Gardam, ‘A New Frontline for Feminism and International Humanitarian Law’ in Vanessa E. Munro (ed), The Ashgate Research Companion to Feminist Legal Theory (Routledge 2013) 217–​32. 75  The diary of an American prison psychologist on post in Nuremberg during the IMT trial, Gustave Gilbert, Nuremberg Diary (Farrar, Straus and Company 1947) 174.

124

124

Rewriting the History of International Criminal Justice

Amongst the women convicted after the Second World War, dermatologist Herta Oberheuser was most likely in the highest position in the Nazi hierarchy, as suggested by her prosecution in the Nuremberg Doctors’ Trial. Nevertheless, her defence also argued that she did not conduct the experiments independently but was totally submitted to her superior, a male doctor. In her succinct final statement, she stated: ‘In administering therapeutical care, following established medical principles, as a woman in a difficult position, I did the best I could.’76 Liesel Willhaus was, to begin with, primarily just a wife, and that is how she got into the position which made her crimes possible. As described, Willhaus’s pattern of behaviour is like that of a spoilt or bored child. If women occasionally made seemingly fully independent individual decisions, such as Erna Petri, convicted of shooting six Jewish children refugees she happened to find on her way home from shopping, it is typically claimed, as it is in her case, that she acted to impress either men in general or her own man, in particular. These women, in the light of the court proceedings or the subsequent commentaries, were merely following, if not direct orders, then at least their impulses and urges. They suffered from ‘sexual dependences’ or acted immaturely, fragile in their erratic descent into violent crime. Their stereotypical profiles bring to mind women’s image as described by the eighteenth-​century feminists: ‘in a state of perpetual childhood, unable to stand alone’, to quote Mary Wollstonecraft.77 These profiles have a strong continuity. In their landmark book in the 1980s, criminologists Nicole Rafter and Elizabeth Stanko referred to how key images of women ‘draw[ing] upon assumptions about how women ought to behave in specific situations, frequently function to reinforce the view of women as dependent, emotional, and in need of manly support’.78 At the same time, paradoxically, testimonies and commentaries frequently claim that particular women perpetrators were—​from the point of view of the victims—​far worse than men, another generalizing gendered claim whose evaluation is problematic.79 This brings us back to where the chapter started, on how the representations of women perpetrators work out in relation to those of men, considered the norm. Behind every visible woman perpetrator, viewed as the exception, there is an invisible or visible man. Women perpetrating crimes either imitate, obey or seek to please men, with no ownership or ideological input of their own. The Abu Ghraib photos featuring torture by women in the 2000s reactivated this discussion.80 How to negotiate here the persistent tension in feminism(s), between the claims of similarity 76 Final Statement of Defendant Oberheuser, Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No 10 October 1946–​April 1949, Vol II. The Medical Case, 169. 77  Quoted in Moira Ferguson (ed), First Feminists: British Women Writers, 1578–​1799 (University of Indiana Press 1985) 413–​19. 78  Nicole Rafter and Elizabeth A Stanko, Judge, Lawyer, Victim, Thief: Women, Gender Roles, and Criminal Justice (Northeastern University Press 1982) 2–​4. 79  On this claim and its sustained biases, see Claudia Koonz, Mothers in the Fatherland (St. Martin’s Press 1987) 404–​5. On claims of cruelty by women in Rwanda, see Adam Jones, ‘Gender and Genocide in Rwanda’ in Adam Jones, Gendercide and Genocide (Vanderbilt University Press 2004) 98, 120–​2. 80  See, eg, Tara Mckelvey (ed), One of the Guys: Women as Aggressors and Torturers (Sealpress 2007).

125

Behind Every Perpetrator Woman

125

and equality on the one hand, and difference and (potential) moral superiority on the other?81 In this discussion, one could argue (and some do) that international criminal law and its institutional practices as we know them today contribute to reinforcing women’s subordinate status. In its sphere of activities and in its advocacy, ‘women’ remain perpetually in need of protection as victims or potential victims, in particular of sexual and gendered violence. That is the abiding image, no matter that many key figures (judges, prosecutors) in the ICC, for example, are of the female sex. Suggestions for redress that follow have a flavour of absurdity, at least from the point of view of the dogmas stressing women’s propensity to preserve life, discussed above. Should women get to be seen—​be shown and known—​to commit crimes, preferably bearing prime responsibility?82 In such a scenario international criminal justice would become an instrument of progress towards broadening the frames of representation of women’s relation to war and agency at war by demonstrating in court practice how (perpetrator) women have acquired more agency and power.83 Such women would reverse the striking absence of heroic, venerated women figures with qualities which at times seem to render (perpetrator) men appealing: physical force, charisma, intelligence, leadership, true devotion to a nationalistic or other ideological cause. Many of the emotions that followed Abu Ghraib had surfaced earlier. The responsibility for Nazi crimes—​be it direct or indirect, individual or collective, political, moral, or legal—​remains arguably one of the most passionately disputed question in the historiography of the twentieth century. Those disputes focus on men and are led by men. As an exception, Claudia Koonz’s Mothers in the Fatherland (1987) started a ‘Historikerinnenstreit’.84 Koonz observed, to start with, how ‘the chain of command from chancellery to crematorium remained entirely within men’s domain; women took no part in planning the “final solution”, and except for a few thousand prison matrons and camp guards, women did not participate in murder’.85 Yet for Koonz, women comprised ‘half of the Germans who made dictatorship, war and genocide possible . . . Far from remaining untouched by the Nazi evil, women operated at its very center.’ Koonz argues that motherhood and the ideology of a decent, happy Aryan family were there to ‘convey an illusion of clean-​cut decency that masked a murderous state’.86 German women did not lend their support to Nazi criminality despite being ‘good mothers’ and devoted caretakers of their families, but precisely

81  See, eg, Nancy F. Cott, The Grounding of Modern Feminism (Yale University Press 1987). 82  See Labenski, The Importance of Women (n 28) 41. 83  On women’s agency in armed conflict and political violence, see Caroline Moser and Fiona Clark (eds), Victims, Perpetrators or Actors? Gender, Armed conflict and Political Violence (Zed books 2001). On the ‘prototypical constructions’ of women as non-​combatants, ‘the Beautiful Soul’, and men as fighters, ‘the Just Warrior’, see Jean Bethke Elshtain, Women and War (Basic Books 1987). 84  See, eg, Gisela Bock, and the 1990 conference in Würzburg on ‘Participation and Resistance: The Problematization of National Socialism in Recent Women’s Studies’, volume Töchter-​Fragen, NS-​Frauen-​Geschichte. 85 Koonz, Mothers (n 79) 387. 86  Ibid. 389.

126

126

Rewriting the History of International Criminal Justice

because of that. And Koonz went further, suggesting that the collective, moral responsibility for Nazi criminality should more explicitly rest on women. Within the fields of history, sociology, and women’s studies, Angelika Ebbinghaus’s Opfer und Täterinnen (1987) was another controversial text for many.87 Ebbinghaus’s book focused on public-​service social workers and counsellors under National Socialism. It touched a sore point insofar as she was understood to suggest that the categories of perpetrators and victims were clear-​cut and mutually exclusive.88 This countered the understanding of women advocated by Gisela Bock that they would be mere assistants or facilitators of National Socialism, to a degree involuntary and less responsible owing to their oppressed position in patriarchal societies in general and in a totalitarian state in particular, as well as rebutting the ideals of women’s occupation of a higher moral plain. Similarly, fifty years later and thousands of kilometres South, in Rwanda, women may have taken part in the genocide in many ways but it is considered that they ‘were rarely directly engaged in the killings’, to cite Nicole Hogg.89 In general, Rwandan women also acted in lower positions in the hierarchy. Even in cases where they may have exercised more autonomous powers and discernment, as members of the government, for example, they are frequently considered to have less responsibility for their crimes than men. And according to Hogg and other commentators90 that is also one of the strategies on which they built their defence. In the case of Nyiramasuhuko at the ICTR, Mark Drumbl observes how ‘her status as woman and mother’ was highlighted both ‘to underscore her personal culpability and individual deviance’ and by those who sought to ‘defend her conduct, including Nyiramasuhuko herself, invoking womanhood and motherhood tropes to emphasize the impossibility of her culpability’.91 With regard to Rwanda, Hogg suggests that women were under-​represented amongst those pursued for genocide-​related crimes, both at the international level and in Rwanda, including in the Gacaca courts, the main focus of her study.92 But why would women’s participation in crime be belittled or obscured in trials? In a more general context, Judith Butler points out how ‘natural’ gender identities and behaviours require the disciplining of performative acts that might disturb the coherence of sex and gender categories: ‘When particular acts of gender transgression, perceived to be extraordinary in nature, become highly visible in public discourse, the “containing” of those acts often entails the reproduction and

87  Angelika Ebbinghaus, Opfer und Täterinnen, Frauenbiographien des Nationalsozialismus (Fischer 1987); Dagmar Reese and Carola Sachse, ‘Frauenforschung zum Nationalsozialismus’ in Lerke Gravenshort and Carmen Tatschmurat (eds), Töchter-​Fragen, NS-​Frauen-​Geschichte (Kore 1990) 73. 88  See the contribution by Mark Drumbl (in this volume). 89  Nicole Hogg, ‘Women’s Participation in the Rwandan Genocide: Mothers or Monsters?’ (2010) 92 International Review of the Red Cross 69–​102. Compare to African Rights, Rwanda—​Not So Innocent: When Women Become Killers (1995). 90  Hogg, ‘Women’s Participation’ (n 89). 91  Drumbl, ‘The Genocide Conviction Of Pauline Nyiramasuhuko, 2011’ (n 20) 124. 92  Hogg, ‘Women’s Participation’ (n 89) 69–​102. Allar, ‘Setting the Picture’ (n 6) 28–​9 and 35 argues similarly with regard to Nazi Germany and Rwanda.

127

Behind Every Perpetrator Woman

127

circulation of elaborate narratives that explain the “abnormalities” in normative ways’.93 Hogg develops several complementary explanations for the fact that so few women have been held responsible for genocide in Rwanda. She finds ‘some evidence that in the pursuit of justice . . . women have benefited from the “chivalry” of men’.94 Criminologist Otto Pollak’s ‘chivalry theory’ has it that male witnesses, investigators, prosecutors and judges are so infected by gender stereotypes that they either cannot perceive of women as criminals or feel protective towards them in spite of their suspected or proven criminality. Men therefore, perhaps unwittingly, exercise their discretion in women’s favour at each level of the criminal justice system—​during reports, arrests, prosecution and sentencing.95

Pollak has the reputation of a bygone misogynist in most (feminist) criminology today, as Hogg points out.96 However, she discusses statements concerning not only prosecutors and witnesses but also Rwandan judges, according to which such ‘chivalrous’ or otherwise favourably attuned attitudes towards women contributed to the relatively small number of women brought to justice on crimes of genocide.97 Leaving any romantic connotations of chivalry aside, it appears that the gender coherence of Rwandan society was upheld by retroactively discarding women from the worst stigma as convicted perpetrators of genocide. The corrective move to redress history by the integration of women—​the now familiar rallying cry of ‘we, too!’—​has, in this chapter, shown its more complex face. When the breakthrough by women consists of committing acts that today qualify as genocide, for example, a desire is aroused in various quarters to absolve the ‘women worthies’, not only of criminal responsibility but also of their ‘place in history’. In consequence, the few women who end up being prosecuted for such grave crimes get processed in a gendered discursive practice that produces and reproduces them as unnatural ‘non-​women’ or dependent on men and infantilized. The ‘inclusion’ of women who perpetrate international crimes sits uncomfortably, not only with some feminist agendas but in particular with the gendered and racialized ideological discourses which inform nations and nationalisms—​where women again have a particular role of their own.98 Behind every perpetrator woman then, there stands not only her man or men, but also a nation. Virginia Woolf ’s ‘outsider’ in Three Guineas claimed: ‘As a woman I have no country. As a woman I want no country.’99 But the countries want ‘their’ women.

93 Butler, Gender Trouble (n 9). 94  Hogg, ‘Women’s Participation’ (n 89) 81. 95  Hogg, ibid., referring to Otto Pollak (1950) as cited in Patricia Pearson, When She was Bad: Violent Women and the Myth of Innocence (Viking Adult 1997) 20–​1. See also Chimène Keitner, ‘Victim or Vamp? Images of Violent Women in the Criminal Justice System’ (2002) 11 Columbia Journal of Law and Gender  70–​2. 96  Hogg, ‘Women’s Participation’ (n 89) 81–​2, fn 75. 97  Ibid.  82–​3. 98  See, eg, Ida Blom, Karen Hagemann, and Catherine Hall (eds), Gendered Nations: Nationalisms and Gender Order in the Long Nineteenth Century (Berg 2000). 99 Woolf, Three Guineas (n 73) 109.

128

128

Rewriting the History of International Criminal Justice

Conclusion In the 1990s, Christian Boltanski’s mega-​collage ‘Menschlich’ (‘human’) proved disturbing for many viewers. Amongst the more than 1,200 portraits Boltanski presented, there were images found at a flea market in Berlin featuring Germans in the 1940s—​sometimes Nazi officers in their uniforms—​in everyday situations, including smiling happily with their children. The normality of the situations depicted marks a contrast with what everyone knew was happening at that time: you could ‘kill a child in the morning and kiss your own in the afternoon’, to cite Boltanski.100 Yet Boltanski does not seem intent on exploiting or confirming ‘the narrative potential of the snapshots’ of which the collage is made, but rather at destroying it.101 Instead of yet another tale of wicked Germans playing Mozart after a day at the camp, his work comes across as an invitation to an ever-​open interpretation. But who took care of the children while their fathers served prison sentences for crimes against humanity or war crimes? How could ‘daddies’ of young children kill or torture, to start with? The day may indeed come when these questions in histories of international criminal trials no longer seem totally incongruous. Today, it is only the women who face the double shift of household and perpetration of crimes, as the histories of the Nazi camp guards reflect. Those contribution histories present, in Tetreault’s words, ‘women who conform to the requirement that women who engage in activities outside the home must nevertheless remain an extension of women’s nurturing role within the family’.102 If one fine day international criminal law would stop hailing women for various (gendered) purposes, that development would also mark the end of a particular need to ‘search for women’ in its histories. Such a change would also mean abandoning the stereotypical glorification of femininity and motherhood. This chapter was not inspired by an antagonism between ‘men’ and ‘women’, but rather curiosity about the tenacity of the gendered understandings of individuals who commit international crimes. Where do these particular kind of stereotypes come from, and are they a-​historical, immutable? In this brief chapter, I cannot pretend to advance more than an impression: perpetrator stereotypes both reflect cultural knowledge that may be referred to as myths which are challenging if not impossible to historicise and build on lived experiences which have temporalities and could, to some extent, be contextualized. The social, economic, and political oppression of individuals or groups of the female sex, as well as the stigmatizing and ostracizing of their sexuality, have of course been subject to countless studies. The stereotypes are not random or ‘irrational’, as such. They tell stories of power, or lack of power, in their peculiar manner, such as suggesting that women are too powerless to qualify as perpetrators. For their part the ideological tropes of selfless motherhood and women’s natural peacefulness also contribute to the mystification of the

100  https://​recollectingthearchive.wordpress.com/​menschlich-​by-​christian-​boltanski/​. 101 Ibid. 102  Thompson Tetreault, ‘Rethinking Women’ (n 7) 171.

129

Conclusion

129

oppression of women in most if not all societies, or so one could claim. Stereotypes of women perpetrators then are not just any stereotypes present in cultural norms and narratives, of Lippmann’s analysis or the later rich scholarship on the matter. They reflect the struggles over the power for mastering violence and the power over women, of what ‘women’ stand for, for (their) men, family, society, and nation. These struggles take place not only in trials but also in history books, academic conferences, and today of course on a plethora of screens. What would be the opposite of stereotypes? Lippmann referred to ‘individualised understanding’. A shortcut would stage stereotypes in a historical understanding as antithetical to the notion of history as objective, or rather the fantasy of its objectivity, in a yet another antagonism. Even if it has long been acknowledged that ‘true objectivity is impossible, the point is to get as close to it as possible’, as Joan Scott writes.103 If only we could today reconstruct via perfect archives, photos, films, and objects to the minutest detail exactly what went on in the life of Herta Oberheuser who conducted often lethal experiments involving vivisection, high altitude, freezing, typhus, or malaria on women detained in concentrations camps, then what? Sooner or later, we would face the barriers of other disciplines of knowledge and expertise prone to gender stereotypes: criminological psychology, psychoanalysis, and so forth. Lippmann viewed stereotypes as ‘the fortress of our tradition’, behind whose defences ‘we continue to feel ourselves safe in the position we occupy’.104 Perhaps next to Lippmann’s fortress, stereotypes of women and femininity can also be configured as a lighthouse in the moral map by which means ‘we’—​men and women—​ orientate ourselves in the world. Because moral qualifications of ‘right and wrong’, ‘good and bad’ are too weak, there is a need for substantive parameters, personifications on which articulations of value are dressed, both in histories and in everyday lives. That is a role which ‘women’ as an ideological category appears to serve well: to personify the dichotomy of good and evil. The positive side is of course personified by the mother, her nurturing, care, and selfless love, followed by the devoted wives and the pure, tender daughters, nurses, and assistants. Negative values are handily carried by women, too, as negations or perversions of the positive personifications: the loveless mother, the obscene wife, the dangerous nurse. Such stereotypical projections on perpetrators have little to do with how individuals behave or not, in the past or present. What counts is that they are deeply anchored, and called upon when ‘reality’ suddenly loses its bearings. In particular in crisis situations, wars, and other dark moments when landmarks are extinguished, people orientate themselves by being conscious of the proximity to—​or distance from—​the lighthouse. Less explicably, the same intuitive gendered coordinates are at times in use in courthouses and university faculties. This is a good moment to start reflecting on the transformation towards reconceptualizing (the history of ) international criminal law. 103  Joan Scott, ‘History-​Writing as Critique’ in Keith Jenkins, Sue Morgan, and Alun Munslow (eds), Manifestos for History (Routledge 2007) 22. 104 Lippmann, Public Opinion (n 48) 64.

130

8 Writing More Inclusive Histories of International Criminal Law Lessons from the Slave Trade and Slavery Emily Haslam

Introduction Historical ‘master-​narratives’ of international criminal law rest on a series of exclusions.1 Orthodox accounts of international criminal law, which trace the discipline’s origins to the legal principles established at the Nuremberg and Tokyo Tribunals, excise histories of slavery, the slave trade, and colonialism.2 However, recent years have seen growing dissatisfaction with the ability of what Gerry Simpson calls the ‘narrative arc from “Tokyoberg” to The Hague’3 to deliver a usable past for the politically charged and contested international criminal legal present. In line with the historical turn in international law generally,4 and the subjection of international (criminal) law to postcolonial critiques, the need for more inclusive histories of international criminal law has become clear. A more inclusive history can offer a more usable account of the past not so much because it more completely portrays ‘what happened’—​although it might do so—​ than because, as one source for critique,5 it contributes a more critical edge to the

1  I  am grateful to Aurelie Duchesne and Colin Elder for their research assistance and to Rod Edmunds, Christopher Gevers, Ioannis Kalpouzos, Thomas Skouteris, and Immi Tallgren for their insightful and helpful comments and conversations on earlier drafts of this contribution. 2  On the ‘double erasure’ of colonial violence, specifically the ‘Africa Blue Books’, see the contribution by Christopher Gevers in this volume. 3  Gerry Simpson, ‘History of Histories’ in Kevin Jon Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press 2013) 3. 4  See, eg, Antony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press 2005); Bardo Fassbender and Anne Peters, The Oxford Handbook of The History of International Law (Oxford University Press 2012); Martti Koskenniemi, The Gentle Civilizer of Nations:  The Rise and Fall of International Law 1870–​1960 (Cambridge University Press 2004); Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi, Time, History and International Law (Martinus Nijhoff 2006). 5  On critical approaches to international criminal law more generally, see Christine Schwöbel (ed), Critical Approaches to International Criminal Law (Routledge 2014). Writing More Inclusive Histories of International Criminal Law: Lessons from the Slave Trade and Slavery. Emily Haslam. © Emily Haslam, 2019. Published 2019 by Oxford University Press.

13

Introduction

131

contemporary.6 However, writing more inclusive histories is far from straightforward. Inclusion operates across many different registers, sites, and communities and is riven with dilemmas as well as opportunities. This contribution explores what it might mean to write a more inclusive history of international criminal law, taking the transatlantic slave trade and slavery as its starting point. In so doing it demonstrates how a more inclusive history of international criminal law can contribute to a more critical international criminal legal present, but its primary focus is to think through some of the challenges of inclusion and to highlight some of the different registers within which questions of inclusion play out. Scholarship on the transatlantic slave trade provides a critical starting point from which to think through some of the challenges and opportunities of more inclusive international criminal legal histories. Although this review is far from comprehensive,7 it is clear that slavery and abolition have given rise to a rich literature exploring the dilemmas of history writing in a cross-​cultural and racialized context that can offer critical lessons for international criminal law. At the least this literature serves as inspiration, a spring board for critical thought. More strongly, it centres questions of inclusion as a key theme in international criminal legal history—​and therefore the present. How the slave trade is included in or excluded from international criminal legal histories plays a key role in determining the parameters of the discipline. This contribution therefore begins by reflecting on questions of inclusion in the discipline of international criminal law. The monopoly of Nuremberg and Tokyo in international criminal legal histories has hidden some of the practices of inclusion and exclusion, which have contributed to constituting the discipline and practice of international criminal law. The following section explores how challenging practices of exclusion requires consideration not just of history but also of memory. In international criminal law memory is touched upon through the law’s engagement with transitional justice. But questions of memory are not so often engaged with when the discipline is historicized—​other, at least, than as a synonym for history or an antonym for forgetting. This is to be regretted. Inscribing processes of remembering and forgetting in international criminal legal history reveals valuable insights about the meanings and significance of ‘past’ events today and with that the limits, opportunities, and potential of international law amongst its multiple constituents. Finally, the contribution turns to one of the key questions of inclusion in scholarship on the slave trade and slavery which is how slaves can and should be inscribed. Here the dilemmas of how to inscribe victims of the slave trade are not confined to writing about victims long dead. Scholarship on the slave trade challenges some of 6  See, eg, on histories of resistance and human rights, Balakrishnan Rajagopal, International Law from Below: Development, Social Movements and Third World Resistance (Cambridge University Press 2003); Neil Stammers, Human Rights and Social Movements (Pluto 2009). 7  For a more extensive discussion on the historiography of research on the slave trade see John Wood Sweet, ‘The Subject of the Slave Trade: Recent Currents in the Histories of the Atlantic, Great Britain and Western Africa’ (2009) 7(1) Early American Studies 3 and Michael Zeuske, ‘Historiography and Research Problems of Slavery and the Slave Trade in a Global-​Historical Perspective’ (2012) 57 International Review of Social History 87.

132

132

Writing More Inclusive Histories: The Slave Trade

the key assumptions that underpin international criminal law’s response to victims of international crime today.

The Significance of Inclusion The slave trade has a peculiar status in international criminal law, being the subject of many meanings. The multivalence of the slave trade in international criminal law is not simply the effects of the vagaries of customary international law and the legalistic demands of the principle of retroactivity,8 although they play their part. It also reflects contestation about the meaning and scope of international criminal law itself. The flip side is that how the slave trade is included in, or excluded from, international criminal legal histories can play a key role in determining the parameters of the discipline. The transatlantic slave trade was unremitting, pitiless, and systematized. As the Declaration of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (Durban Declaration) proclaimed: [S]‌lavery and the slave trade, including the transatlantic slave trade, were appalling tragedies in the history of humanity not only because of their abhorrent barbarism but also in terms of their magnitude, organised nature and especially the negation of the essence of victims.9

Out of twelve million individuals who were violently trafficked, ten and a half million survived the Middle Passage to the Americas.10 The transatlantic slave trade was central to modernity: to the development of racism, capitalism, and colonialism. Its consequences endure: in profound global inequality, in the underdevelopment of Africa, in continuing racism and structural injustices.11 Despite the centrality of the transatlantic slave trade to modernity, the slave trade and slavery are hardly included in orthodox international criminal legal histories. In fact, the slave trade has a singular status in international criminal law. During the heyday of international abolition the slave trade was not an offence against the Law of Nations, although the reasons for this should form part of international criminal legal history. Identifying whether the slave trade has become an international crime today is not straightforward. Some leading authorities exclude the slave trade from lists of international crimes,12 whilst others position the slave trader 8 For an argument against the application of the principle of non-​retroactivity see Patricia M. Muhammad, ‘The Trans-​Atlantic Slave Trade:  A Legacy Establishing a Case for International Reparations’ (2013) 3(2) Columbia Journal of Race and Law 148, 183–​7. 9 Durban Declaration, 8 September 2001, World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance A/​Conf.189/​12 para 10. 10  James Walvin, ‘Slave Trade’ in David Dabydeen, John Gilmore, and Cecily Jones (eds), The Oxford Companion to Black British History (Oxford University Press 2007) 448. 11 See, eg, Shadrack Gutto, ‘In Search of Real Justice for Africa and Africans, and Her/​Their Descendants in a World of Justice, Injustices and Impunity’ (2013) 8(1) International Journal of African Renaissance Studies 30. 12  See further the discussion in Grietje Baars, ‘Making ICL History; On the Need to Move Beyond Pre-​fab Critiques of ICL’ in Schwöbel, Critical Approaches (n 5) 200.

13

The Significance of Inclusion

133

as the archetypal international criminal. The latter approach is evident in the famous dictum in Filartiga v Peňa Irala: ‘for the purposes of civil liability, the torturer has become—​like the pirate and the slave trader before him—​hostis humani generis, an enemy of mankind’.13 For others the slave trade is the subject of corrective justice. Thus the drafters of the Durban Declaration acknowledged that ‘slavery and the slave trade are a crime against humanity and should always have been so, especially the transatlantic slave trade’.14 The particularity of the crime can be further seen in the controversial French Taubira Law, which recognized the slave trade and slavery in the former French Caribbean, Indian Ocean, and France as a crime against humanity, but only it seems in a declaratory and not normative sense.15 How the slave trade is related to international criminal legal history and international criminal law depends upon how international criminal law is conceived. Is international criminal law a systemic institutional architecture? Is it a historically contingent response to atrocity located within a longer term history of international institutional justice? Or might it also be a site that promises redress—​whether materially or rhetorically—​for historic injustice? These different understandings of international criminal law, which may overlap, suggest different international criminal legal histories in which the slave trade becomes progressively more relevant. Thus an account of the progressive development of individual responsibility and international criminal institutions may minimize the significance of the slave trade other than as an example of a site of exclusion from international criminal law. In contrast when international criminal law is understood as a historically contingent response to atrocity abolition might provide historically relevant examples of institutional development and innovation.16 The slave trade is essential to an international criminal law understood as a site for the redress of historic injustice. Accepting the relevance of the slave trade for international criminal legal histories in turn highlights a different set of issues and questions in contemporary international criminal law to those that arise when Nuremberg and Tokyo are positioned as historical starting points. Thus inscribing the slave trade into international criminal legal history centres questions concerning the relationship between capitalism and crime and capitalism and racism,17 (and capitalism and humanitarianism),18 in 13  Filartiga v Peňa Irala 630 F.2d 876 (2nd Circuit 1980) 890. 14  Durban Declaration (n 9) para 10. 15  C Cass, Ch. Crim 5 Février 2013, 11-​85909. 16  On the relevance of abolition in international criminal legal histories and international criminal law as a historically contingent approach to injustice see further Emily Haslam, ‘International Criminal Law and Legal Memories of Abolition: Intervention, Mixed Commission Courts and “Emancipation” ’ (2016) 18(4) Journal of the History of International Law 420, 422. For an account which traces legal links between abolition and contemporary human rights and international criminal law see, eg, Jenny Martinez, The Slave Trade and the Origins of International Human Rights Law (Oxford University Press 2012). 17  See further, eg, Walter D. Mignolo, ‘Sylvia Wynter:  What Does It Mean to be Human?’ in Katherine McKittrick, Sylvia Wynter On Being Human as Praxis (Duke University Press 2015) 106, 112–​14. 18  See further on these relationships Sweet, ‘The Subject of the Slave Trade’ (n 7) 27; Marcus Rediker, The Slave Ship: A Human History (John Murray Publishers 2007); Eric Williams, Capitalism and Slavery (University of North Carolina Press 1994); Jacques Depelchin, Reclaiming African History (Pambazuka Press 2011).

134

134

Writing More Inclusive Histories: The Slave Trade

a context in which international criminal law typically overlooks structural forms of violence.19 However, vital as it is to reflect upon the effect of inscribing the slave trade on the substantive content of international criminal law, this chapter focuses on the methodological insights and challenges that the inscription of the slave trade into international criminal legal histories brings. These centre upon questions of inclusion across a series of different registers. Questions of inclusion run through histories and the historiography of the transatlantic slave trade.20 Zeuske calculates that since the 1970s around 80 per cent of research on slavery stems from the US with about 10 per cent from Brazil,21 despite the fact that, Sweet observes, less than 5 per cent of Africans shipped as slaves were transported to North America.22 Racism and racialization have played a part in conditioning the production of knowledge about the slave trade. Austen argues that white voices have dominated the European slave trade literature, ‘and their hegemony over the production of this knowledge, along with control over the resources needed for black liberation, have created new forms of racial hierarchy’.23 This dominance is compounded because, as one commentator has observed, Anglo-​American scholarship is usually directed at political and ethical issues, in contrast to African scholarship which focuses on the relationship between the slave trade, colonialism, and postcolonialism.24 There is much at stake for international criminal law in these differences. Those who focus on abolition are likely to read into current law possibilities for progressive particularly institutional development, whereas those who emphasize the continuing legacies of the slave trade are likely to emphasize the limitations of the law within the context of profound structural inequalities. It follows that simply adding histories of the slave trade and abolition to the historical ‘archive’ of international criminal law will not make for a more inclusive history unless attention is paid to the politics and terms of inclusion.25 But the conditions of knowledge production are not the only register within which questions of inclusion arise, even if they underpin all others. Exploring questions of inclusion also requires attention to be paid to the politics of memory.

19  For a critique of the preoccupation of international lawyers with crises see Hilary Charlesworth, ‘International Law: A Discipline of Crisis’ (2002) 65 Modern Law Review 377. 20  On the more general exclusion of atrocities against Africans and the concomitant need to ‘de-​ centre European perspectives’, see Gevers in this volume. 21  Zeuske, ‘Historiography and Research Problems’ (n 7) 87. 22  Sweet, ‘The Subject of the Slave Trade’ (n 7) 3. See further on the ‘hegemony of Anglo-​American historiographies’ Zeuske, ‘Historiography and Research Problems’ (n 7) 89. 23  Ralph Austen, ‘The Slave Trade as History and Memory:  Confrontations of Slaving Voyage Documents and Communal Traditions’ (2001) LVIII William and Mary Quarterly 239, 243. 24  Sweet, ‘The Subject of the Slave Trade’ (n 7) 32. 25  Here the archive is understood as a ‘site of knowledge production’ not just ‘a repository of historical records and sources’ Renisa Mawani, ‘Law’s Archive’ (2012) 8 Annual Review of Law and Society Science 337, 339.

135

The Politics of Memory: Remembering and Forgetting

135

The Politics of Memory: Remembering and Forgetting Scholarship on the slave trade has given rise to rich discussions about the relationship between memory and history. The implications of this literature are that determining what the slave trade, or indeed any ‘past’ atrocity, means for international criminal law cannot simply be reduced to legal history. It is also a question of collective memory26 and memory and history may diverge.27 Further implications are that international criminal events are history for some and memory for others. However, as Austen claims, memory politics ‘must also be addressed if we are to arrive at a full understanding of the history to which it is attached’.28 The intersection between memory and history can reveal valuable insights about the law. Memory can provide a pressing critique of the law’s limits, opportunities and present potential by exemplifying the different meanings of atrocity across communities and across time. In particular, memory can reveal narratives of the powerless.29 Critically, memory is not just about the past but also the present. Therefore, slave trade memories, Austen claims, ‘are kept alive in Africa not merely as ways of evaluating the past but also . . . as a means of coming to terms with a contemporary global economy that does not appear to distribute its rewards very equitably’.30 But just like history, collective memories of the slave trade are riven with questions of inclusion, requiring an interrogation of the different registers and sites in which remembering—​and its converse forgetting—​take place. Casting its shadow over the relations between Africa and the International Criminal Court (ICC), the transatlantic slave trade constitutes a common history between Africa, Europe, and the Americas. It has, however, been remembered differently. Europeans often remember abolition. In international law the reiteration of the piracy-​slave trade analogy can be read as a false memory to the extent that it glosses over the failure to recognize the slave trade as a crime against the Law of Nations. Even amongst communities devastated by the slave trade memories differ. It is sometimes claimed that African Americans remember the slave trade—​in

26 See, eg, the discussion of the relationship between memory and history in Bernard Bailyn, ‘Considering the Slave Trade: History and Memory’ (2001) 58 The William and Mary Quarterly 245, 249–​51 and Austen, ‘The Slave Trade as Memory and History’ (n 23). On the distinction between memory and history see Pierre Nora who explains history ‘is the reconstruction, always problematic and incomplete, of what is no longer. Memory is a perpetually actual phenomenon, a bond tying us to the eternal present.’ Pierre Nora, ‘Between Memory and History: Les Lieux de Mémoire’ (1989) 26 Representations 7, 8. On memory ‘as empirical historical source’, ‘moral consciousness’ and as ‘racial politics’ see Austen, ‘The Slave Trade as Memory and History’ (n 23) 230. 27  See, eg, the exploration of the Gorée Island dispute ‘about memory, history and racial historiography’ in Austen, ‘The Slave Trade as Memory and History’ (n 23) 230. 28  Ibid. 241. 29 See the discussion in David Scott, ‘On the Archaeologies of Black Memory’ (2008) 6(1) Anthurium: A Caribbean Studies Journal Article 2, http://​scholarlyrepository.miami.edu/​anthurium/​ vol6/​iss1/​2. 30  Austen, ‘The Slave Trade as Memory and History’ (n 23) 240 writing in the context of debates about estimates of the slave trade.

136

136

Writing More Inclusive Histories: The Slave Trade

contrast to African descendants of slaves31 (although it is possible that in the context of opposition to the ICC a public memory of the slave trade may be more willingly articulated). However, memory also manifests in multiple ways,32 so that the slave trade may be evoked differently by different communities rather than forgotten.33 And more inclusive practices are not always to be found in practices of remembering. Akyeampong warns that reviving memories publically when descendants of victims do not seek public remembrance can risk ‘grounding present social relations in the power dynamics of the past’.34 Forgetting can also be read as a radical critique of the present. ‘Forgetting’ the slave trade might reflect the fact that it was for Africans, MacGonagle observes, ‘one episode in a long history’ and not the ‘defining historical moment’ it was for diasporic communities.35 This longer history includes exploitation and colonialism.36 From this perspective the formal end of the European and American slave trade was not necessarily a conclusive turning-​ point.37 One reading of forgetting then is that it underlines the effects of underdevelopment, displacement, and trauma along with the limitations of abolition—​as an avowedly radical change in the law—​to effect radical transformations on the ground. Inscribing processes of remembering and forgetting challenges the international (criminal) legal assumption that the transatlantic slave trade lies in the past,38 a temporal assumption which, as Bevernage claims of traditional historical time more generally, is ‘structurally more compatible with the perpetrators’ than the victims’ point of view’.39 In a context in which the construction of international criminal legal history remains fundamentally Western, a history documenting memories of the slave trade casts a critical light on the law by revealing meanings of atrocity amongst multiple 31  Emmanuel Akyeampong ‘History, Memory, Slave-​Trade and Slavery in Anglo (Ghana)’ (2001) 22(3) Slavery and Abolition 1. 32  See further Rosalind Shaw, Memories of the Slave Trade: Ritual and the Historical Imagination in Sierra Leone (University of Chicago Press 2002); Akyeampong, ‘History, Memory, Slave Trade’ (n 31) 21 noting the memorialization of the Atorkor slave incident ‘through songs and a drum style by a group that lacked political power’; Austen reads the connection between witchcraft and slavery as demonstrating that ‘Africans recognised the universal (perhaps more than the racial) category that made the victim of the slave trade “a man and a brother” ’. See Austen, ‘The Slave Trade as Memory and History’ (n 23) 239. 33  Saidiya Hartman observes that ‘those who stayed behind’ recall ‘not loss’ but ‘survival and good fortune’. See Saidiya Hartman, Lose Your Mother: A Journey Along the Atlantic Slave Route (Farrar, Straus and Giroux 2007) 232. Those with slave trader ancestors may also feel a certain amount of self-​respect because they are not descended from slaves, see Akyeampong, ‘History, Memory, Slave Trade’ (n 31) 19. 34  Akyeampong, ‘History, Memory, Slave Trade’ (n 31) 20. 35  Elizabeth MacGonagle, ‘From Dungeons to Dance Parties: Contested Histories of Ghana’s Slave Forts’ (2006) 24(2) Journal of Contemporary African Studies 249, 256. 36  See further Sweet, ‘The Subject of the Slave Trade’ (n 7) 31, 40-​41. See further MacGonagle, ‘From Dungeons to Dance Parties’ (n 35) 251. 37  Sweet, ‘The Subject of the Slave Trade’ (n 7) 40. Continuities exist in law too as international abolition relied on some of the same legal structures that had supported the slave trade, see further Emily Haslam, ‘The Slave Trade, Abolition and the Long History of International Criminal Law: The Recaptive and the Victim (forthcoming Routledge). 38  Notably the Preamble to the Rome Statute on the International Criminal Court 1998, 2187 UNTS 90 emphasizes that: ‘during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity’ (emphasis added). 39  Berber Bevernage, History, Memory, and State-​Sponsored Violence (Routledge 2012) ix.

137

Inscribing Slaves

137

communities. A history of international criminal law which takes memory seriously cannot admit of a single authoritative history other than one which emphasizes contested meanings over time, including contested temporalities, that is a different understanding of where the present and past meet. These contestations offer a critical mirror to international criminal legal orthodoxy and with that the possibility of an international criminal legal present that is more responsive to, and influenced by, the different ways in which the law’s possibilities, limits, and legacies might be experienced by its multiple constituents. In that sense memory broadens the range of international criminal legal sources. But to understand memory requires a deep understanding of ethnography and history.40 Questions of inclusion do not arise solely from an analysis of the politics of memory. One central issue that touches on inclusion in scholarship on the slave trade and slavery is how slaves can and should be inscribed. This question raises a set of issues which are reflected in the question of how the figure of the victim should be inscribed into international criminal law today.

Inscribing Slaves in International Criminal Legal Histories Recent years have seen increased importance given to the recognition of victims in international criminal legal discourse and practice, so much so that the victim has become one of the central justifications for international criminal law.41 This justification rests upon the implicit and sometimes explicit claim that international criminal law provides justice to victims. In this context justice for victims has come to be judged, not only by the circumstance of prosecution or conviction, but just as critically by the extent to which it can be claimed that proceedings admit the expression of victims’ voices and the recognition of their agency. This effort to give voice and recognize agency is an important one. However, it runs the risk of turning into a panacea unless attention is paid to the politics and purposes behind such inscription. These and other questions of representation run through writings on the slave trade and provide a critical starting point for thinking about the ways in which the figure of the victim is mobilized in contemporary international criminal justice. Literature which grapples with the dilemmas of inscribing slaves challenges the way international criminal legal discourses frame victims today. Critical scholarship has come to critique the framing of victims in broad terms, but it has put forward fewer alternative framings other than in the shift in language from victim to survivor. This 40  Alice Bellagamba, Sandra E. Greene, and Martin A. Klein African Voices on Slavery and the Slave Trade (Cambridge University Press 2013) 11. 41  Laurel Fletcher, ‘Refracted Justice: The Imagined Victim and the International Criminal Court’ in Christian De Vos, Sara Kendall, and Carsten Stahn (eds), Contested Justice: The Politics and Practice of International Criminal Court Interventions (Cambridge University Press 2015); Sara Kendall and Sarah Nouwen, ‘Representational Practices at the International Criminal Court: The Gap Between Juridified and Abstract Victimhood’ (2013) 76 Law and Contemporary Problems 235; Ann Sagan, ‘African Criminals/​African Victims: The Institutionalised Production of Cultural Narratives in International Criminal Law’ (2010) 39(1) Millennium Journal of International Studies 3, 12.

138

138

Writing More Inclusive Histories: The Slave Trade

shift may seek to emphasize agency on the part of individual victims. It does little to challenge the underlying structures that may have contributed to crime in the first place, and within which expressions of agency take place. It might be objected that the coupling of methodological challenges inherent in writing more inclusive histories with those inherent in scripting more inclusive presents both instrumentalizes victims of the slave trade and joins the past and present too readily. The dangers of instrumentalizing victims of the slave trade are very real. At the same time, histories are also written for present purposes. This requires balancing between two poles: on the one hand avoiding the (or indeed too much) instrumentalization of slave trade victims and on the other drawing lessons from the past in order to contribute to the construction of as self-​reflective a discourse of international criminal law as possible. The negotiation of these poles forms part of the dilemmas of inclusion that this contribution traces. The second issue relates to a too ready conflation of the past and present.42 At first glance, incorporating slaves into international criminal legal histories raises methodological challenges that do not exist today. For one thing the direct testimony of survivors is potentially accessible. However, insofar as these challenges relate to the broader framing of victims they continue to resonate. Slaves’ voices, when textually recorded, were normally highly mediated within a racialized often colonial narrative framework. Slaves’ voices in the legal record are no exception. Today victims’ voices also remain highly mediated, notwithstanding victim participation at the ICC.43 Victims’ voices are channelled by reference to the purposes of specific legal proceedings and can be appropriated more generally in support of international criminal justice. Thus although the victim is ‘real’ he or she is also an ‘imagined’ figure,44 a ‘juridified’ and ‘abstract’ subject,45 for whom it is assumed that participation in international criminal legal proceedings is generally curative. This assumption frames the way in which expressions of agency are recognized and read with the result that the ‘ideal victim’ of international criminal law is typically positioned as an a-​political subject,46 in favour of international criminal law and more particularly in favour of the ICC.47 42  Debates about a too ready conflation of the past and present often focus around anachronism. See, eg, Randall Lesaffer, ‘International Law and its History: The Story of an Unrequited Love’ in Craven, Fitzmaurice, and Vogiatzi et al, Time, History and International Law (n 4) 29 claiming that international lawyers’ concern for the past is in general largely ‘functional and dictated by current needs’ rather than ‘born out of a curiosity about the past itself.’ For a response to criticisms of anachronism in critical international legal histories see Anne Orford, ‘On International Legal Method’ (2013) 1 London Review of International Law 166, 171. 43  Article 68(3) Rome Statute on the International Criminal Court 1998, 2187 UNTS 90. 44  Fletcher, ‘Refracted Justice’ (n 41) 302. 45  Kendall and Nouwen, ‘Representational Practices’ (n 41). 46  On the ideal victim see Niels Christie, ‘The Ideal Victim’ in Ezzat A. Fattah (ed), From Crime Policy to Victim Policy (MacMillan 1986) 17, 18; Joris van Wijk, ‘Who is the ‘Little Old Lady’ of International Crimes? Nils Christie’s Concept of the Ideal Victim Reinterpreted’ (2013) 19 International Review of Victimology 159. See further Emily Haslam and Rod Edmunds, ‘Victim Participation, Politics and the Construction of Victims at the International Criminal Court: Reflections on Proceedings in Banda and Jerbo’ (2014) 14 Melbourne Journal of International Law 727. 47  Haslam and Edmunds, ‘Victim Participation’ (n 46).

139

Inscribing Slaves

139

Scholarship on the slave trade provides a critical counter-​narrative to this framing. Commenting on Paul Gilroy’s The Black Atlantic,48 Yogita Goyal observes the need to ‘place the slave at the center of modernity and produce our histories and philosophies from that vantage point, relocating the figure of the slave from silent victim to eloquent critic’.49 The application of this insight to international criminal law challenges the discursive framing of contemporary victims in both ‘real’ and ‘imagined’ forms—​to borrow from Fletcher: from recipients of international criminal justice to critical political subjects.50 A more inclusive history of international criminal law would inscribe the multiple roles of slaves in challenging their enslavement.51 Slave resistance took many forms in different contexts.52 Concerns about slave resistance on ships increased the cost of the Middle Passage, money that might otherwise have been spent on enslaving a million more.53 Slaves rebelled including in Jamaica in 1760 (Tacky’s Rebellion), and in 1831–​32 (the Baptist War); in Barbados in 1816 (Bussa’s Rebellion), and in British Guiana in 1823. Particularly noteworthy was the Haitian Revolution, the first time Genovese famously argued, ‘a slave revolt had become a great national revolution’.54 In some jurisdictions slaves were witnesses in litigation, both in prosecutions for slave trading,55 and perhaps most relevantly here, in some cases before legally innovative Mixed Commission Courts. These were bilateral tribunals established to adjudicate the legality of intervention against slave ships, early fora in which international law responded to multiple victims.56 Described by Jenny Martinez as early human rights courts,57 a claim which this author and others have questioned.58 Mixed Commissions could emancipate slaves found stowed in captured slave ships 48  Paul Gilroy, The Black Atlantic: Modernity and Double Consciousness (Verso 1993). 49  Yogita Goyal, ‘African Atrocity, American Humanity: Slavery and Its Transnational Afterlives’ (2014) 45(3) Research in African Literatures 48, 66. 50  See also Mamdani’s distinction between the victim as ‘citizen with agency’ on the one hand and ‘a ward without agency’ on the other, see Mahmood Mamdani, ‘Response’ (2009) 3 International Journal of Transitional Justice 470, 471. 51  But it might also require interrogating concepts of agency and resistance, see further Alexander Weheliye, Habeas Viscus: Racializing Assemblages, Biopolitics, and Black Feminist Theories of the Human (Duke University Press 2014) 2. 52 See, eg, Gary Okihiro (ed), In Resistance:  Studies in African, Caribbean, and Afro-​American History (The University of Massachusetts Press 1986). See further Eugene Genovese, From Rebellion to Revolution: Afro-​American Slave Revolts in the Making of the Modern World (Louisiana State University Press 1979); Michael Craton, Testing the Chains: Resistance to Slavery in the British West Indies (Cornell University Press 2009). For a historiography of slave resistance see Douglas R. Egerton, ‘Slave Resistance’ in Mark Smith and Robert Paquette (eds), The Oxford Handbook of Slavery in the Americas 2012 DOI:10.1093/​oxfordhb/​978019927990.013.0021. 53  Bernard Bailyn, ‘Considering the Slave Trade: History and Memory’ (2001) 58(1) The William and Mary Quarterly 245, 246. 54 Genovese, From Rebellion to Revolution (n 52) 90. 55  Emily Haslam, ‘Silences in International Criminal Legal Histories and the Construction of the Victim Subject of International Criminal Law: the Nineteenth-​century Slave Trading Trial of Joseph Peters’ in Schwöbel, Critical Approaches (n 5) 181. 56  Haslam, ‘International Criminal Law and Legal Memories of Abolition’ (n 16) 422. 57 Martinez, The Slave Trade (n 16) 22. 58  See Philip Alston, ‘Does the Past Matter? On the Origins of Human Rights Law’ (2013) 126(7) Harvard Law Review 2043; Samuel Moyn, Human Rights and the Uses of History (Verso 2014) 54–​62; Haslam, ‘International Criminal Law and Legal Memories of Abolition’ (n 16).

140

140

Writing More Inclusive Histories: The Slave Trade

or restore them with damages to ships’ masters and slave owners. In some cases, slave resistance led to freedom where the logic of Mixed Commissions’ constituent instruments prevented Mixed Commissioners from formally emancipating them.59 Emphasizing the historic contribution of slaves serves as a corrective to accounts of international legal change which focus exclusively on white abolitionists and/​or states. This resistance should form part of the history of international criminal law. Against the backdrop of concerns about the ways in which African victims of crime are constructed, particularly so given the focus of the ICC on African situations,60 the incorporation of histories of slave resistance positions African victims not simply as objects but also as subjects of international legal change. However, whilst international criminal law can be criticized for writing out narratives of slave resistance it is not entirely clear how such narratives should be inscribed. How should narratives of slave agency and resistance be related, not just in the sense of their narrative framing but also in the sense of their links to contemporary resistance, particularly resistance by some African states, to the ICC? The question of narrative framing was famously explored in David Scott’s ground-​ breaking analysis of C.L.R. James’ The Black Jacobins in which Scott distinguishes between romance and tragedy.61 For Scott, a ‘Romantic historical problematic’ emphasizes the ‘vindicationist story of the slave’s undaunted will to resist’,62 and challenges ‘racist and colonial’ assumptions about the limits of black agency.63 However, he questions whether an account featuring ‘the martyred revolutionary hero of a Romantic anticolonial drama’ offers the most critical opportunities today.64 This is not, he explains, because the present is free from racism but because it is marked ‘by a profound skepticisim about the teleologies of nationalist and socialist liberation’. In this context the quest is to uncover a narrative framing fit to critique this present.65 Scott turns instead to the ‘story-​form of tragedy’ directed at the ‘transformed conditions’ within which ‘slaves were obliged to fight for freedom’.66 The attention Scott pays to the narrative framing of resistance provokes vital questions concerning the ends to which narratives of slave agency can, and should be, brought into international criminal legal histories. One the one hand histories of international criminal law which emphasize the contribution of African victims to legal development have significant critical purchase in the contemporary context in which accounts of legal change have been 59  Haslam, ‘International Criminal Law and Legal Memories of Abolition’ (n 16) 444–​6. 60  See further Sagan, ‘African Criminals/​African Victims’ (n 41). 61  David Scott, Conscripts of Modernity: The Tragedy of Colonial Enlightenment (Duke University Press 2004). See further Cyril Lionel Robert James, The Black Jacobins: Toussaint L’ Ouverture and the San Domingo Revolution (Penguin 1980). For a detailed discussion of international criminal law’s historical narrative frames and the disruptions to them by including atrocities against Africans see the contribution by Christopher Gevers in this volume. 62 Scott, Conscripts of Modernity (n 61) 131. 63  Ibid. 97. 64  Ibid. 96. 65  Ibid. 97. 66  Ibid. 131. For Scott the ‘tragedy’ of Toussaint L’Ouverture lies ‘in the fact that, inescapably modern as he is obliged by the modern conditions of his life to be, he must seek his freedom in the very technologies, conceptual languages, and institutional formations in which modernity’s rationality has sought his enslavement’. Ibid.168.

14

Inscribing Slaves

141

riven with Euro-​centricism and in which international criminal law has historically shown limited recognition of victims’ agency. On the other hand just as for Scott it is unclear where ‘anti-​imperialist emancipation is supposed to lead’,67 the agency discourse in international criminal law has delivered less than it has promised as victims’ justice has become substituted for, or equated with, claims about the expression of voice and agency within an institutional framework which, absent more fundamental change to structural conditions, including those contributing to crime, can only deliver a limited form of justice. In this context, more inclusive histories of international criminal law which emphasize slaves’ agency must take care not to allow the inscription of agency to insulate the law from critique, for example by overlooking slaves’ and liberated Africans’ struggles against the immediate and longer term limitations of abolition and the failure of international law to deal with longer term structural inequalities, including those traceable to the slave trade. Similarly, without challenge to the structural conditions underpinning international crime, substituting, or equating, victims’ justice for expressive claims about agency and voice is limited. Scott brilliantly incites reflection on the importance of the narrative framing that surrounds the inscription of agency, challenging us to consider what different narrative forms offer for the emancipatory potential of agency discourses in international criminal law. Locating contemporary agency narratives within a longer term history which includes critical analyses of the politics of agency opens up vital questions in contemporary international criminal law. The question of determining a politically progressive or emancipatory framing of agency in international criminal legal history is closely related to the question of who claims to be the political inheritors of slave—​and for that matter other forms of anti-​colonial68—​resistance in international criminal law.69 This is a question which comes into sharp relief in the context of African opposition to the ICC and is fundamentally a question about the politics of the present. It might also provoke some class-​based analysis of the ways in which slavery and slave resistance are deployed in the contemporary politics of international criminal justice—​at least if one aim of inscribing histories of resistance is to avoid co-​option by elites, whether they be expressing opposition to, or support of, the ICC.70 In the context of a rich discussion of the US Thirteenth Amendment, to which it is not possible to do justice here, Guyora Binder encourages ‘contemporary Americans to define themselves as political descendants of the slaves’,71 attributing 67  Ibid. 96. 68  See, eg, the contribution by Kamari Maxine Clarke in this volume. 69  This question draws on Guyora Binder’s call upon all Americans to see themselves ‘as political descendants of the slaves’ Guyora Binder, ‘Did the Slaves Author the Thirteenth Amendment? An Essay in Redemptive History’ (1993) 5(2) Yale Journal of Law and the Humanities 471, 472. See further in a different context Roberto Malighetti, ‘Identitarian Politics on the Quilombo Frechal: Live Histories in a Brazilian Community of Slave Descendants’ (2010) 2 Outlines-​Critical Practice Studies 97, 110 noting the quilombos not as ‘isolated survivals of a past to be honored’ but as ‘nuclei of the contemporary resistance founded on the collective property of the land’. 70  See further the discussion of the historiography of African resistance more broadly, including class-​based analyses in Terence Ranger, ‘Resistance in African: From Nationalist Revolt to Agrarian Protest’ in Okihiro (ed), In Resistance (n 52) 33–​4. 71  Binder, ‘Did the Slaves Author The Thirteenth Amendment?’ (n 69) 472.

142

142

Writing More Inclusive Histories: The Slave Trade

in a number of different ways ‘authorship’ of the Thirteenth Amendment to the slaves. For Binder this is a ‘project of redeeming a shared political identity’ which ‘offers all Americans, privileged as well as oppressed, a common interest in eradicating slavery’s continuing legacy’.72 Binder’s call when applied to international criminal law emphasizes the responsibilities attendant on speaking slave resistance into the present. In the context of international criminal law these responsibilities include addressing the impact of the postcolonial condition and under development on the conditions underpinning both crime and justice. These responsibilities might, as has been the focus of this contribution, include challenging the way the victim has been deployed in international criminal legal discourse. Positioning the present international criminal legal (and human rights) community as progeny—​at least in part—​of slave resistance and not just of abolitionist activism offers a provocation to some of the assumptions underpinning the construction of victims in international criminal law even if it also raises the danger that slave resistance might be appropriated.73 Justice to victims is not performed by lip-​service to agency without sustained attention to the political and economic conditions underpinning the production and representation of agency, including its narrative framing. However, the inscription of slaves does not just challenge the ways in which agency and resistance are inscribed. The idea of, and need for, witnessing to atrocity plays a central role in rationales for international criminal law. This justification does not only apply at the level of the individual witness for whom witnessing is professed to contribute to the truth and, more optimistically, to play a curative function. In bearing witness to atrocity, the international community not only collectively affirms a rhetorical commitment to ensure the non-​recurrence of atrocities, but also contributes to the construction of itself as a particular kind of international political community. Writings on the slave trade have given rise to rich critiques of the practice of witnessing and its associated concepts of sentiment and empathy. Reading these critiques alongside contemporary international criminal justice gives rise to questions about the purposes to which the international criminal legal community calls for witnessing to atrocity, beyond the immediate purposes of the trial (the determination of responsibility). Key to these critiques is what Saidiya Hartman describes as the ‘uncertain line between witness and spectator’.74 In Spectres of the Atlantic Ian Baucom masterfully critiques the spectator who ‘takes in the pains and sorrows of another’.75 The danger is that this identification can absolve the spectator who ‘sympathizes less with the dying and the dead than with the idea of his own display of sympathy’.76 And the risk is not limited to absolving the witness. Saidiya Hartman masterfully demonstrates how ‘narcissistic identification’ can erase the other77 with the ‘white witness 72  Ibid. 477. 73  On the dangers of appropriation more generally see ibid. 500–​1. 74  Saidiya Hartman, Scenes of Subjection:  Terror, Slavery and Self-​Making in Nineteenth-​Century America (Oxford University Press 1997) 4. 75  Ian Baucom, Spectres of the Atlantic: Finance Capital, Slavery and the Philosophy of History (Duke University Press 2005) 294. 76  Ibid. 282; see further the discussion in Sweet, ‘The Subject of the Slave Trade’ (n 7) 26. 77 Hartman, Scenes of Subjection (n 74) 4.

143

Conclusion

143

of the spectacle of suffering’ risking the reproduction of ‘the hyperembodiness of the powerless’.78 The concern is that the ‘politics of empathy’ highlight, in the words of Sweet, ‘cruelty and suffering rather than justice and equality’.79 All this begs the question of the ends to which slave suffering is written into international criminal legal history and what sort of action in the present must accompany the inscription of slave suffering for it to operate not simply to absolve international law’s failure first to criminalize the slave trade and second, to respond more thoroughly and fundamentally to the continuing consequences of the trade in the present. A similar question might also be asked of witnessing present day suffering. The act of witnessing, once deployed beyond the immediate functions of the trial—​and even then—​transferred to an act of, and claimed as an act by, the international community can sit in an uneasily relationship with the recognition of the subjectivity of the primary victims of crime. Critiques of witnessing in histories of slavery compel a close critical articulation of the ends to which suffering and atrocity are witnessed, by whom they are witnessed, and the multiple potential effects of witnessing. They provide an alternative measure of progress when applied to accounts which emphasize the increased recognition and acknowledgment of victims’ suffering in international criminal law.

Conclusion The slave trade is not the only starting point for an alternative history of international criminal law.80 Even so, more inclusive histories of international criminal law should encompass the slave trade as modernity’s foundational crime.81 The identification of, and response to, international crimes is riven by a global north-​south divide. This requires a more penetrating approach in international criminal legal histories to the multiple legacies of the slave trade, as ‘the institution that lies at the very origins of contemporary relationships between peoples of African and of European origin’.82 However, including the slave trade in international criminal legal history can be performed in numerous ways. One history might link contemporary international criminal law (and human rights) to legal institutional developments associated with abolition.83 Another history might disrupt common assumptions about agency in international legal change by pointing to the resistance of slaves.84 The focus of this 78  Ibid. 19. 79  Sweet, ‘The Subject of the Slave Trade’ (n 7) 25. Sweet is discussing Baucom, Spectres (n 75) here. 80  For other ‘origins’ of international criminal law, eg piracy see Gerry Simpson, Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity 2007)159 ff. For criticism of the search for origins see Immi Tallgren, ‘Searching for Historical Origins of International Criminal Law’ in M. Bergsmo, C.W. Ling, and Y. Ping, Historical Origins of International Criminal Law: Volume I (Torkel Opshal EPublisher 2014) 19. 81  For critiques of Eurocentricism in this particular construction of modernity see Scott, Conscripts of Modernity (n 61) 112. 82  Austen, ‘The Slave Trade as Memory and History’ (n 23) 240. 83  See, eg, Martinez, The Slave Trade (n 16) 22. 84  See, eg, Haslam, ‘International Criminal Law and Legal Memories of Abolition’ (n 16).

14

144

Writing More Inclusive Histories: The Slave Trade

chapter has been on methodological implications, that is, how histories of the slave trade shed light on writing more inclusive international criminal legal histories. In this sense inscribing the slave trade re-​frames international criminal law as a subject of history from a systemic institutional architecture to a series of struggles around inclusion across different sites. Inclusive histories offer more usable histories not by providing specific substantive legal solutions to present dilemmas but by opening international criminal law to wider critique and alternative futures based on a broader reading of the past and the meaning of the past in the present than the progress narratives that have so far dominated the discipline. In providing inspiration for critical thinking about the present, more inclusive histories render the law more fluid and open to the sorts of contestations that admit of richer understandings of the present condition of international criminal law. Accounts of the slave trade can serve as inspiration for more inclusive histories of international criminal law at the same time as they pose questions about how more inclusive histories might be achieved. However, from the quest to acknowledge (and perhaps reconcile) different memories of the slave trade amongst multiple communities to the desire to acknowledge and inscribe the roles of slaves, writing more inclusive histories is far from straightforward. The benefits and challenges of inclusion can be seen in the ways in which memory confronts international criminal law with the law’s possibilities, limits, and legacies. The benefits of a more inclusive history are perhaps most obvious from scholarship which grapples with inscribing slaves. Literature on slavery represents a sustained engagement with, and a powerful critique of, the politics of writing voice, agency, and witnessing all of which underpin claims to do justice to victims in the present. It operates as an incitement to re-​think the discursive framing of victims in international criminal law. If inclusion brings benefits, it is far from straightforward and is never fully accomplished or accomplishable. Writing more inclusive histories is dependent upon continuous negotiation and renegotiation, requiring alertness to, and critically an open articulation of, the terms, politics, and conditions of inscription and exclusion at both micro and macro levels. Writing more inclusive histories also requires an engagement with the politics of memory. All this renders international criminal legal history less linear, more messy and complex than an institutional progress narrative.85 However, at a time when international criminal law is coming under challenge for its Western bias, such histories can form a critical starting point for the discipline to come to terms with its multiple pasts and grapple with its potential futures. Herein lies their emancipatory potential.

85  For a critique of progress narratives in international law see Thomas Skouteris, The Notion of Progress in International Law Discourse (T.M.C. Asser Press 2010).

145

9 The ‘Africa Blue Books’ at Versailles The First World War, Narrative, and Unthinkable Histories of International Criminal Law Christopher Gevers

Introduction In 1935 C.S. Forrester published The African Queen, a colonial romance set in ‘German Central Africa’ at the outbreak of the First World War. The novel opens in the aftermath of a raid on a mission station, in which the German army ‘swept off the entire village, converts and heathens alike, to be soldiers in the Army of German Central Africa’.1 The raid sets the novel’s heroine Rose Sayer on a quest for revenge,2 and to ‘strike a blow for England’,3 by using a run-​down riverboat—​ the ‘African Queen’—​as a makeshift torpedo to sink a German gunship patrolling ‘Lake Wittelsbach’, and leads to an unexpected romance with the riverboat’s ‘ne’er-​ do-​well’ captain, Charlie Allnut. In 1951 the novel was made into a film starring Katharine Hepburn and Humphrey Bogart (for which Bogart won an Oscar). Both the novel and film were well-​received, and together (still) form the basis of public knowledge in the West of the ‘African theatre’ during the First World War.4 Forester’s novel is remarkably similar to its German counterpart, Marie-​Luis Droop’s Kwa heri, a colonial romance written a few years prior which is set in ‘German East Africa’ and depicts the disruption of a bucolic and benevolent colonial enterprise by the onset of war. However, the two novels suffered dramatically different fates: in contrast to The African Queen, Droop’s novel and its 1934 film version (Die Reiter von Deutsch-​Ostafrika (The Riders of German East Africa)) would 1  C.S. Forester, The African Queen (Little, Brown and Company 1935) 4. 2  Not for the African victims of the raid but for causing the death of the mission’s Reverend, her brother, who succumbs to illness after witnessing ‘the sight of the labours of ten years being swept away’. Rose’s secondary concern for those captured is limited to the ‘damage done to the holy cause’: ibid. 7. 3  Ibid. 9. 4  As Orosz notes that ‘[p]‌ublic awareness of the African theatre in the Great War stems largely from C. S. Forester’s 1935 novel The African Queen, and its subsequent 1951 film adaptation’. Kenneth J. Orosz, ‘The Dwarf, the Goetzen and C.S. Forester’s African Queen: A Reassessment of Naval Operations in First World War Africa’ (2016) 44(4) Journal of Imperial and Commonwealth History 592, 592. The ‘Africa Blue Books’ at  Versailles: The First World War, Narrative, and Unthinkable Histories of International Criminal Law. Christopher Gevers. © Christopher Gevers, 2019. Published 2019 by Oxford University Press.

146

146

The ‘Africa Blue Books’ at Versailles

fade into relatively obscurity, the film remembered today only as an example of early ‘Nazi propaganda’ (although the Nazi’s themselves banned it for its pro-​British sentiment).5 Nevertheless, both novels rehearse a weathered and widespread literary convention of ‘reducing Africa to the role of props’, in Chinua Achebe’s words; using ‘Africa as setting and backdrop’, ‘a metaphysical battlefield devoid of all recognizable humanity, into which the wandering European enters at his peril’.6 In this respect The African Queen follows the familiar convention of ‘Africa as the testing ground of character’, of which Conrad’s Heart of Darkness remains the archetype.7 What sets The African Queen apart from both its German counterpart (Droop’s Kwa Heri) and its archetype (Conrad’s Heart of Darkness) is the fact that, although the novel is set entirely in Africa, there is not a single African character nor any African dialogue. Neither in the ‘stock figures’ of the ‘naked warrior’, ‘loyal servant’, or ‘ancient wiseman’ that were prevalent in writing about Africa at the time (and remain so),8 nor even Conrad’s ‘black and incomprehensible frenzy’ (passed on the river banks) of ‘black limbs, a mass of hands clapping, of feet stamping, of bodies swaying, of eyes rolling’.9 It is the epitome of the ‘[Africa] as metaphysical battlefield devoid of all recognizable humanity’ that Achebe derides; the proverbial ‘Africa without Africans’. This ‘present absence’ of African subjects in The African Queen makes it a useful text to introduce the story of the erasure of African subjects (and their suffering) from international criminal law’s founding moment at Versailles in 1919. Like in Forester’s novel, this story begins with German raids on African homes, this time set out in more florid detail (with accompanying pictures) in the ‘Atrocity Blue Book’ on German Atrocities and Breaches of the Rules of War in Africa published by the British government early on in the conflict, in 1916. This was followed by a second Atrocity Blue Book on Africa—​the Report on the Natives of South-​West Africa and Their Treatment by Germany—​published in 1918 (reportedly edited by novelist John Buchan ‘whose literary inventiveness was given full reign’.).10 However, while these ‘atrocity stories’ were central to the call for criminal prosecutions of Germans (and Articles 227–​230 of the Treaty of Versailles), African subjects were a ‘present absence’ from the report of the Commission on the Responsibility for the Authors of the War and on Enforcement of Penalties; which inexplicably excluded the atrocities contained in the Africa Blue Books (whilst relying extensively on the other Blue Books). The African victims of the atrocities alleged in the Africa Blue Books were not absent 5  Jeffrey Richards, Visions of Yesterday (Routledge & Kegan Paul 1973) 356. 6  Chinua Achebe, ‘An Image of Africa: Racism in Conrad’s Heart of Darkness’ (2016) 57(1) The Massachusetts Review 1457(1) 14, 21. Hammond and Jablow have catalogued how ‘Africa [has] remained a field for the free play of European fantasy’, and ‘Western literature provides the record of the fantasy’, noting: ‘In popular writing Africa is strangely homogenous and static; differences between past and present and between one place and another are obliterated. Africans, limited to a few stock figures, are never completely human, and Africa exhibits few changes over time’. Dorothy Hammond and Alta Jablow, The Myth of Africa (Library of Social Science, 2012) 13–​14. 7  Joseph Conrad, Heart of Darkness (1902). Hammond and Jablow, The Myth of Africa (n 6) 107. 8  Binyavanga Wainana, ‘How to Write About Africa’ (2006) 92 Granta. 9 Conrad, Heart of Darkness (n 7). 10  G.M. Cockram, South West African Mandate (Juta & Co. 1976) 11.

147

African Queen, Africa Blue Books, & 1919 Commission on Responsibility 147 from Versailles altogether, however, re-​appearing (as an ‘absent presence’, perhaps) in the debates over the future of German colonies. After recounting the story of the double erasure of the Africa Blue Books from international criminal law’s founding moment at Versailles—​ the first in the Commission on Responsibility’s report, the second in the histories told of the First World War and international criminal law—​this chapter will explore the conditions of their erasure from the historiography, and what might happen if they were included. In both endeavours The African Queen and its myriad afterlives (in fiction, non-​fiction, and film) prove a productive analogue as these texts intersect in interesting ways, both in content and form.

The African Queen, the Africa Blue Books, and the 1919 Commission on Responsibility ‘Blackening’ the enemy: ‘Atrocity stories’ at Versailles While Nuremberg is the ‘centrepiece’ of most histories of international criminal law, many begin with Articles 227–​230 of the Treaty of Versailles (1919), which called for the prosecution of the German Kaiser for ‘supreme offence against international morality and the sanctity of treaties’, as well as ‘persons accused of having committed acts in violation of the laws and customs of war’.11 This is a seemingly inauspicious place to start—​the trial of the Kaiser never took place (he was granted asylum in The Netherlands) and the trial of lower-​level offenders at Leipzig were by most account simply ‘show trials’. Nevertheless, beginning the history of international criminal law at Versailles is important for two reasons. First, it counteracts critiques of Nuremberg by demonstrating that the project of prosecuting international crimes pre-​dates 1945, if only by a little. Second, it sets in motion a narrative of struggle, positioning Versailles as a failed, ‘weak’,12 premature or even ‘abortive’13 antecedent, in a longer progressive history—​a history written with a clear and confident view of what will follow. In fact, for those introduced to international criminal law through such histories it difficult to conceive of ‘Versailles’ without following it with ‘Nuremberg’ and ‘Rome’.14 Before ‘Nuremberg’, however, Read wrote a history of Articles 227–​ 230 that looked quite different. Read argued that they were ‘called into being by the

11  See, eg, M. Cherif Bassiouni, Introduction to International Criminal Law, 2nd edn (Martinus Nijhoff 2014) 540–​6; R. Cryer, H. Friman, D. Robinson, and E. Wilmshurst, An Introduction to International Criminal Law and Procedure, 1st edn (Cambridge University Press 2007) 91–​2; Gerhard Werle and Florian Jessberger, Principles of International Criminal Law, 3rd edn (Oxford University Press 2013)  2–​6. 12 Bassiouni, Introduction to International Criminal Law (n 12) 548. 13  A. Cassese and P. Gaeta, Cassese’s International Criminal Law, 3rd edn (Oxford University Press 2013) viii. 14  Claus Kress, ‘Versailles—​Nuremberg—​The Hague: Germany and International Criminal Law’ (2006) 40 International Lawyer 15.

148

148

The ‘Africa Blue Books’ at Versailles

propaganda of atrocities, which led to the overpowering demand for punishment of the war criminals’.15 The ‘picture of the enemy . . . painted during the war’ by these so-​called ‘atrocity stories’16 made the inclusion of Articles 227–​230 ‘inevitable’. 17 As a result, ‘the statesmen at Paris in 1919 were largely the prisoners of their own machinations’,18 responding, reluctantly in part, to events set in motion four years prior. Moreover, far from being ‘weak’ or ‘abortive’, Read placed Articles 227–​230 at the centre of negotiations at Versailles. They were the only ‘fresh condition’ introduced after the armistice, the first issue addressed at the Peace Conference, the provisions that the Germans ‘tried hardest and longest . . . to eliminate from the treaty’, and the first part of the Treaty be broken.19 Read’s account was well-​received when it came out, even one less than enthusiastic review in the American Journal of International Law begrudgingly called it ‘a useful summary of the large literature dealing with atrocity propaganda’.20 Centring (or perhaps even including) these ‘atrocity stories’ in a history of Articles 227–​230, and therefore of international criminal law, is likely to unsettle its supporters. Leaving aside the suggestion that they contributed to the Second World War, during the First World War ‘atrocity stories’ were used to ‘justify breaches of international law’ and strategically prologue hostilities in order to impose a severe peace:21 aims that are the antithesis of international criminal law’s official purposes of deterrence and peace. Be that as it may, their inclusion raises the spectre of atrocities committed against Africans during the war, and colonial violence more generally, as amongst the various Blue Books published by British government during the war were two concerning German atrocities in Africa, and predominantly against Africans. These Blue Books were central to public demand for prosecutions after the war; as a ‘large part of the world’s press was supplied with British news dispatches’ and much of it was directed at ‘atrocities and breaches of international law by Germany’.22 Yet, when it came to the prosecution of German atrocities, the 1919 Commission on Responsibility apparently never considered the prosecution of those committed against Africans; which were instead used to justify confiscating German territories and placing them under ‘Mandates’.23 The story of what happened to these Africa Blue Books can be usefully told alongside the story of Forester’s The African Queen.

15  James M. Read, Atrocity Propaganda: 1914–​1919 (Yale University Press 1941) vii. The phrase used by the Germans to characterize the British propaganda effort against them was, appropriately, ‘blackening’ the enemy. See The Treatment of Native and other Populations in the Colonial Possessions of Germany and England (1919) 48. 16  Ibid. 2. 17  Ibid. vii. 18  Ibid. viii. 19  Ibid. 240, 276–​7. 20  Charles Callan Tansill, ‘Atrocity Propaganda, 1914–​1919 by James Morgan Read’ (1942) 36 American Journal of International Law 364, 364. Harold Lasswell declared: ‘[n]‌owhere can there be found a more exhaustive or judicious appraisal of the subject’, Harold D. Lasswell, ‘Atrocity Propaganda, 1914–​1919 by James Morgan Read’ (December 1942) 14(4) The Journal of Modern History 542–​3,  542. 21  See Read, Atrocity Propaganda (n 16) vii, 10–​12. 22  Ibid.  187–​8. 23  See Art 22, Treaty of Versailles.

149

The African Queen and the Africa Blue Books

149

The African Queen and the Africa Blue Books The African Queen opens in the aftermath of a German raid on a mission in ‘German Central Africa’, which impels the heroine’s attempt to sink the Konigin Luise (a German gunship) using the ‘African Queen’ as a makeshift torpedo. It has been widely assumed that Forester drew inspiration for The African Queen from the famed naval battles on Lake Tanganyika24 (in fact, the 1951 film version opens in ‘German East Africa, September 1914’). However, recent research suggests that Forester drew much of his inspiration from the less well-​known attempts by a German missionary to sink a British ship using makeshift torpedoes in the Cameroons during the opening days of the war.25 This might not be the only inspiration Forester drew from the Cameroons. The German raid that forms the backdrop for the novel resembles the raids on villages in the Cameroons at the war’s outset.26 These raids—​in which ‘natives’ were rounded up for use as soldiers or ‘porters’ or summarily shot or had their homes destroyed—​make up the majority of the allegations in the 1916 Africa Blue Book. In fact, that Blue Book spends seventy-​one of its eighty-​eight pages detailing the alleged atrocities committed during such raids, which included the ‘war crimes’ of killing of civilians, extermination, mutilation, destruction of civilian property, ordering no quarter be given, and the use of ‘expanding bullets’ and ‘poisoned arrows’27 (along with a number of ‘crimes against humanity’, by today’s standards).28 The 1916 Africa Blue Book ends with a report regarding treatment of POWs in German South-​West Africa, 29 which declined the opportunity to consider the mistreatment of ‘Native Prisoners of War’ on the basis that the German cruelty in this regard was already well-​known.30 The reasons for this reluctance to report on the ‘ill-​treatment of natives’ in German South-​West Africa is unclear, but it was short-​lived. A second Blue-​Book concerning Africa, published in 1918, dedicated over 200 pages solely to the ‘history and treatment’ of the ‘native races’ under German domination, from the moment of colonization until the outbreak of war. 31 The 1918 Africa Blue Book paid particular

24  Percy Hutchison, ‘A Strange Wartime Adventure in German East Africa’, New York Times, 10 February 1935, 5. 25  See Orosz, ‘The Dwarf, the Goetzen and C. S. Foresters African Queen’ (n 4), 592–​621. 26  Moreover, the description of the travails of the main characters against a hostile and uninhabitable terrain is more closely associated with West than East Africa in the literary convention of writing about Africa. See Hammond and Jablow, The Myth of Africa (n 6) 60, 108. 27  Its final fifteen pages are devoted to German ‘outrages’ in ‘East Africa’ and ‘German South-​West Africa’, committed predominantly against white Allied soldiers, and are considerably less severe (they include prisons ‘unfit for the confinement of Europeans in a tropical country’ (64). The Germans responded with the complaint that their POWs in Africa ‘had been forced to carry their own suitcases’. Read, Atrocity Propaganda (n 16) 123 fn 89. 28  These would include the crimes against humanity of persecution, extermination, and imprisonment. 29  German Atrocities and Breaches of the Rules of War in Africa (1916), 81–​6. 30  Ibid. 86. 31  Report on the Natives of South-​West Africa and Their Treatment by Germany (1918), 4. For the German response, see The Treatment of Native and other Populations in the Colonial Possessions of Germany and England (n 11) 309.

150

150

The ‘Africa Blue Books’ at Versailles

attention to ‘the extermination of the Hereros’.32 After extolling the ‘Humanity of the Herero’33—​as against both other native ‘tribes’ and the Germans34—​the Report detailed the brutal manner in which the Herero were ‘exterminated’ through ‘merciless inhumanity and calculated ferocity which is well-​nigh unbelievable’.35 This included the Vernichtungsbefehl (extermination order) issued by General Lothar von Trotha on 2 October 1904 to—​as the Report puts it—​‘let not man, woman, or child be spared—​kill them all’.36 In describing von Trotha, Buchan’s ‘literary inventiveness’ was in full flight:37 [N]‌o more worthy son of Attila could have been selected for the work in hand. He had just suppressed the Arab rebellion in German East Africa by bathing that country in the blood of thousands and thousands of its inhabitants, men, women and children; and his butchery there ended, he was ordered by Wilhelm II to proceed to German South-​West Africa and deal with the rebel natives.

The Blue Book estimated that ‘[o]‌ut of between 80,000 and 90,000 souls only about 15,000 starving and fugitive Hereros were alive at the end of 1905, when von Trotha relinquished his task’.38 The 1918 Blue Book proceeded to go on to detail the subsequent internment of the surviving Herero and Nama in concentration camps, to be used as forced labour and sexually assaulted, and ‘kept in captivity under such conditions that the majority died’.39 While ‘the Light of International Criminal Law’40 is only now being shone on these genocides in South West Africa at the turn of the century, much of what today is being ‘uncovered’ was plainly stated in the Africa Blue Book of 1918. These ‘hidden histories’41—​which remain absent from mainstream accounts—​were in 1918 hidden in plain sight. The conditions of their subsequent erasure, at least insofar as international criminal law was concerned, were prefigured in the closing passages of the 1918 Blue Book:42 After years of docile submission it is obvious that time must elapse before [the native races] . . . can realize that matters have changed, that they can look to us for protection, and that attacks upon their virtue may now be resisted, and resisted with impunity [emphasis added].

32  Report on the Natives of South-​West Africa and Their Treatment by Germany (n 32) 5, 35–​46, 50–​67, and 99–​103. 33  Ibid. 46, 55, 57, 58. 34  Ibid. 40. 35  Ibid. 61. See generally ibid. 61–​7. 36  Ibid. 40, 60. 37  Ibid. 59. 38  Ibid. 67. 39  Ibid. 99, see generally 97–​103. Considered by some scholars as genocide by ‘inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’. Article II, Genocide Convention. See, eg, Klaus Bachmann, ‘Germany’s Colonial Policy in German South-​West Africa in the Light of International Criminal Law (2017) 43(2) Journal of Southern African Studies 331–​47, 342. An allegation anticipated floridly by the Report, 98. 40  Bachmann, ‘Germany’s Colonial Policy in German South-​West Africa’ (n 40) 331–​47. 41  G. Simpson and K.J. Heller (eds), The Hidden Histories of War Crimes Trials (Oxford University Press 2013). 42  Report on the Natives of South-​West Africa and Their Treatment by Germany (n 32), 200.

15

The Africa Blue Books

151

‘Resisting with Impunity’: The Commission on Responsibility and the Africa Blue Books When the Commission on Responsibility released its report in March 1919 it was clear that it had decided, quite literally, to resist atrocities against Africans ‘with impunity’. How and when the decision was taken to exclude African victims from those who would receive ‘justice’ at Versailles (in theory, if not in the event) is not clear. It certainly was not a distinction maintained in the Blue Books or surrounding press reports during the war. It fact, the week that the first Africa Blue Book was published in August 1916, and after initial reluctance, ‘[q]‌uite suddenly . . . English public opinion became receptive to the idea of forcing Germany to expiate her crimes’.43 Following the publication of the 1918 Africa Blue Book, the Times suggested that the ‘savage abominations’ contained in it made the ‘inhuman outrages committed in Europe seem insignificant’.44 In fact, Read suggests that ‘the atmosphere in 1917 and through the summer of 1918 was remarkably free of recrimination’, and it was only later in 1918 that the ‘wrath of the British people was . . . roused’;45 coinciding with the publication of the Blue Book on German South West Africa.46 Looking back, however, the signs were present at the outset; a September 1916 article by Hugh Bellot—​honorary secretary of both the International Law Association and the Grotius Society—​referred to the poisoning of wells by Germans in South-​West Africa discussed at the end of the recently published 1916 Africa Blue Book in some detail, but failed to mention any of the war crimes committed against Africans in the preceding seventy-​odd pages.47 In the lead-​up to Versailles there was no suggestion in official documents that the justice to be dispensed for atrocities would be circumscribed geographically or racially. When France, Italy, and the British met before the Peace Conference to discuss the issue, their proposal called for the trial of ‘the Kaiser and his primal accomplices’ for inter alia ‘the incalculable sufferings inflicted on the human race during the war’.48 Upon its establishment, the Commission on Responsibility’s mandate was

43 Read, Atrocity Propaganda (n 16) 243. Read lists the Blue Book as one of ‘a series of reports on German misdeeds which accumulated toward the end of July added its weight to the demand for retribution’. 44  Times, 12 September 1918 (quoted in ibid. 236). 45 Read, Atrocity Propaganda (n 16) 245–​6. 46  The Blue Book was presented to Parliament in August 1918. Notably, Read cites other press reports at the time as responsible for the ‘roused’ interest in criminal trials. Ibid. 246–​7. 47  Hugh Bellot, ‘War Crimes: Their Prevention and Punishment’ (1962) II Problems of the War: Papers Read Before the Society in the Year 1916  49–​50. 48  The British Embassy to the Department of State, received 3 December 1918, quoting the Telegram from Mr. Balfour to Mr. Barclay, London, 2 December 1918, 2 Foreign Relations of the United States, Diplomatic Papers (FRUS), 1919, Paris Peace Conference (PPC), (US GPO, 1934) 653.

152

152

The ‘Africa Blue Books’ at Versailles

unhindered—​geographically or otherwise—​by the Peace Conference; it was tasked with reporting on inter alia ‘the facts as to breaches of the laws and customs of war committed by the German Empire and their Allies on land, on sea, and in the air during the present war’.49 The report of the Commission on Responsibility cast a wide net, geographically speaking; for example, the alleged atrocities listed in the report as taking place in the ‘British Empire’ included attacks on the British mainland, ships, and a hospital abroad,50 as well as British and Indian prisoners of war in France, Germany, Turkey, and modern-​day Iraq and Syria (then ‘Turkey in Asia’).51 However, the atrocities committed against Africans detailed in the two Africa Blue Books of 1916 and 1918 and elsewhere were nowhere to be found.52 Neither the report, nor its thirty-​page annexure providing a ‘Summary of Examples of Offences . . . against the Laws . . . of War and the Laws of Humanity’, contained crimes against Africans listed in the Africa Blue Books; notwithstanding the fact that the report cited thirty ‘British Reports’53 and just about every one of the offences listed were alleged in the 1916 Africa Blue Book.54 Similarly, while the report included the ‘Armenian Genocide’, citing as evidence another 1916 British Blue Book’,55 no mention is made of the extermination of the Herero detailed in the 1918 Africa Blue Book. In this respect, the Commission on Responsibility appeared to (presciently) take further inspiration from The African Queen by inexplicably leaving Africans out of the story altogether. Europeans are the subjects of both, with Africans rendered mere objects (if that). This ‘preposterous and perverse arrogance’56 was repeated in the 1951 film for the most part, where Africans appear briefly on screen—​to sing incomprehensibly, squabble over a cigarette butt, or follow orders and shoot gleefully and ineptly at the ‘African Queen’—​but are otherwise absent.

49  Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (1920) 14(2) AJIL 95, 95 (own emphasis). 50  Annexure 1, 51. 51  Ibid.  55–​6. 52  The Commission concluded that ‘[i]‌n spite of the explicit regulations, of established customs, and of the clear dictates of humanity, Germany and her allies have piled outrage upon outrage’ and recommended the criminal prosecution of ‘[a]ll persons belonging to enemy countries, . . . including Chiefs of States, who have been guilty of offences against the laws and customs of war or the laws of humanity’. Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (n 50) 113, 117. 53 Read, Atrocity Propaganda (n 16) 267. 54  Which included ‘murders and massacres’, ‘torture of civilians’, ‘deliberate starvation of civilians’, ‘rape’, ‘deportation of civilians’, ‘internment of civilians under inhuman conditions’, ‘forced labor of civilians in connection with the military operations of the enemy’, ‘compulsory enlistment of soldiers among the inhabitants of occupied territory’, ‘pillage’, ‘confiscation of property’, ‘imposition of collective penalties’, ‘wanton devastation and destruction of property’, ‘use of explosive or expanding bullets, and other unhuman appliances’, ‘directions to give no quarter’. German Atrocities and Breaches of the Rules of War in Africa (n 30). 55  The Treatment of Armenians in the Ottoman Empire, 1915–​1916 (1916). 56  Achebe, ‘An Image of Africa’ (n 6) 1790.

153

The ‘Africa Blue Books’ since 1919

153

The Africa Blue Books since 1919: International Criminal Law and Unthinkable Histories It is unclear why the Commission on Responsibility decided that the atrocities alleged in the two Africa Blue Books were not to be subject to the same justice anticipated for other atrocities at Versailles. One answer might be that equal justice for African victims of wartime atrocities (and certainly colonial violence more generally) was simply ‘unthinkable’ at the time; in the same way that the Haitian Revolution was ‘unthinkable even as it happened’.57 Up until after the Second World War, black self-​determination and justice for African victims might have been ‘unthinkable’ for similar reasons. However, equal justice of the sort denied at Versailles was thinkable to some scholars writing at the time, such as W.E.B. Du Bois, and thinkable in the language of international criminal law.58 Moreover, justice of some sort was also conceivable to the unknown authors of the Foreign Office’s report on Treatment of Natives in the German Colonies, which included a chapter on ‘Charges against individuals’, containing the names of fourteen individuals ‘chiefly concerned’ in the numerous ‘proved atrocities in the German colonies’.59 What is more remarkable is that the suffering of Africans during the First World War and justice (even in the abstract) for such victims remains largely unthinkable for historians today, both inside and outside of international criminal law. To borrow a phrase familiar to international criminal lawyers, these historians appear to be ‘unwilling or unable’ to include, let alone centre, atrocities committed against Africans in their respective histories. General historians of the First World War continue to treat ‘[c]‌ampaigns fought in Africa, and African contributions to the war’s conduct more generally’ as a ‘sideshow’, ‘in favour of an exclusive focus on the war in Europe, or on European perspectives’.60 In much the same way, histories of international criminal law generally continue to treat atrocities committed against Africans as ‘sideshows’ ‘in favour of an exclusive focus on . . . European perspectives’; whether such atrocities were committed during events that have led to international criminal trials (such as the First and Second World Wars), or the far greater number that have not (such as slavery, colonialism, decolonization, Apartheid). Notably, while 57  Michel-​Rolph Trouillot, Silencing the Past: Power and the Production of History (Beacon 1995) 73. According to Trouillot, the Haitian Revolution posed such a challenge to ‘the ontological and political assumptions’ of the day that they ‘were “unthinkable” facts in the framework of Western thought’ (82), and remained so until after the Second World War. 58  Du Bois who, in an essay published in 1920, pointed out the hypocrisy in condemning German ‘atrocities’ in ‘pitiable Belgium’, but overlooking Belgium’s violence in ‘the black Congo’; or America ‘protesting against Turkish atrocities in Armenia’ in light of its own unpunished racial violence. W.E.B. Du Bois, Darkwater: Voices from Within the Veil (Harcourt, Brace and Company 1920). 59  Treatment of Natives in the German Colonies (1920) 32–​41. 60  Michelle Moyd, ‘Centring a Sideshow: Local Experiences of the First World War in Africa’ (2015) First World War Studies 7(2), 111–​30, 111–​12. Moyd points out that this eurocentricism ‘undermines understanding . . . [the First World War’s] effects on local populations in Africa, the Middle East and Asia, as well as in transnational, imperial and global terms’ and worse still, ‘it renders other experiences and perspectives less historically valuable than those of the ostensible “center” of the war, Europe’.

154

154

The ‘Africa Blue Books’ at Versailles

no prosecutions under international criminal law for atrocities against Africans took place until 1994, this is not the standard for inclusion of events in these histories (Articles 227–​230 of the Treaty of Versailles and the Armenian genocide being the most immediate examples).61 The continued failure to do so is overdetermined, but it has something to do with both failings in the archive, and the failure of historians to de-​center European perspectives in their histories generally; failures which are illustrated by the fate of the Africa Blue Books and the afterlives of The African Queen, respectively.

Archival Failings: The Suppression of the Africa Blue Books By the end of the war, the Africa Blue Books had already outlived their usefulness for British and Dominion officials. In 1920, the British government published a shorter report on the Treatment of Natives in the German Colonies, which covered some of the same ground as the two Africa Blue Books but with less detail and rhetorical flourish. The shorter 1920 recalled the ‘Herero Rebellion’ in just over a page (noting that ‘the greater part of the tribe . . . was exterminated, and out of a total of 80,000 only about 20,000 escaped’), and included the ‘Majimaji Rebellion in German East Africa’ and the ‘Bushiri rebellion’ as examples of German unfitness to rule.62 Notably, the two African Blue Books did not make it into the list of ‘Authorities’ at the end of the report, but the 1918 did make it into a footnote.63 By 1926 the 1918 Blue Book on ‘German South West Africa’, in particular, had become a liability. It was a threat to the harmonious relations of the White settler population in the ‘South-​West Africa’ Mandate territory—​made up of Germans and post-​war emigrés from South Africa. At the same time, the admission of Germany to the League of Nations in 1926, and the possibility that it might try reclaim its colonies as a ‘Mandates’, created concern in the British Foreign Office regarding the role of the 1918 Blue Book in their removal in the first place.64 As a result, ‘all known copies of the Blue Book’ were ‘systematically removed from public libraries throughout South Africa and Namibia and destroyed’,65 and ‘in other parts of the 61  For histories that include the Armenian genocide, see Ilas Bantekas and Susan Nash, International Criminal Law, 2nd edn (Cavendish 2003) 358; Bassiouni, Introduction to International Criminal Law (n 12) 542; Cassese and Gaeta, Cassese’s International Criminal Law (n 14) 254; Cryer et al, Introduction to International Criminal Law and Procedure (n 12) 188; and William A. Schabas, An Introduction to the International Criminal Court, 3rd edn (Cambridge University Press 2012) 4. 62  Treatment of Natives in the German Colonies (n 60) 45–​8. 63  Treatment of Natives in the German Colonies (n 60). Notably, it did contain a chapter on ‘Charges against individuals’, which listed fourteen individuals ‘chiefly concerned’ in the numerous ‘proved atrocities in the German colonies’. Ibid. 32–​41. 64 See Christina Twomey, ‘Atrocity Narratives and Imperial Rivalry:  Britain, Germany and the Treatment of “Native Races”, 1904–​1939’ in T. Crook and B. Taithe (eds), Evil, Barbarism and Empire: Britain and Abroad, c. 1830–​2000 (Palgrave Macmillan 2011) 201–​25. 65  Jan-​Bart Gewald and Jeremy Silvester, ‘Footsteps and Tears: An Introduction to the Construction and Context of the 1918 “Blue Book” ’ in Words Cannot be Found: German Colonial Rule in Namibia: An Annotated Reprint of the 1918 Blue Book (2003) xxxii (noting: ‘The dead of the Herero genocide and other atrocities were dismissed and forgotten in the interests of white settler reconciliation’).

15

The Suppression of the ‘Africa Blue Books’

155

British Empire they were transferred to a special hold in the Foreign Office’.66 When British officials in Singapore requested a copy of the 1918 Africa Blue Book during the Second World War, in order to show ‘the ill treatment of natives by Germany’, the Foreign Office was reluctant to release it (as it was ‘composed in the heat of the last war,’ and was ‘historically somewhat suspect’).67 It acceded to the request eventually, but with instructions that it ‘should not be used for publicity purposes’. 68 The disappearance of the Africa Blue Books from the public record likely impacted what would have been one of the earliest attempts at writing a history of international criminal law, Raphael Lemkin’s unpublished History of Genocide, which was incomplete when he died in 1959.69 After setting out the ‘genocides’ of Antiquity and the Middle Ages in the first two volumes, Lemkin’s draft volume on ‘Modern Times’ began with a chapter on ‘The Germans in Africa’, followed later in the text by a specific chapter on the Herero genocide. Lemkin planned to include further chapters on the genocides that he concluded had taken place against the ‘Hottentots’ and in the ‘Belgian Congo’, ‘South Africa’ and ‘S.W. Africa’ (an additional chapter on the subject).70 Had Lemkin completed the book, the appearance of these chapters therein might have significantly altered the historiography of international criminal law. However, while Lemkin mentions the two Africa Blue Books71 he appears only to have had access to the condensed Treatment of Natives in the German Colonies (1920), on which he draws extensively.72 As a result, in his discussion of the Herero genocide Lemkin had to rely on the one page devoted to it in Treatment of Natives in the German Colonies (1920), rather than the thirty-​plus page treatment it receives in the 1918 Blue Book. In 2003 the 1918 Africa Blue Book was published as a book (with annotations) in order to make ‘a prime source material’ on the ‘Namibian genocide’ accessible to a broader audience; the authors noting that scholars ‘have tended, on the whole, to rely on the secondary literature’.73 However, it was still incomplete in a sense, missing an annexure—​included in the original 1918 Africa Blue Book, but omitted when it was made public—​with statements by ‘natives of South-​West Africa as to their future and the future government of the country’.74 The matter was further complicated by the decision of the editor of the American Journal of International Law to omit the thirty-​page annexure to the Report of the Commission on Responsibility,

66  Reinhart Kössler, ‘Sjambok or Cane? Reading the Blue Book” (2004) 30(3) Journal of Southern African Studies 703–​8, 703–​4. See PRO FO 371/​26574 ‘Minute’, Foreign Office, 20 June, 1940. 67  Cited in Twomey, ‘Atrocity Narratives and Imperial Rivalry’ (n 65) 201. 68  Cited in ibid. 69  The incomplete manuscript was published in Steven Leonard Jacobs (ed), Lemkin on Genocide (Lexington 2012). 70  See the outline of the History of Genocide in ibid. 18–​19. 71  Ibid. 277. 72  See Lemkin’s Bibliographies for the chapter on ‘The Germans in Africa’ in ibid. 221. 73  Gewald and Silvester, ‘Footsteps and Tears’ (n 66) xxxiii. Gewald and Silvester go further, suggesting it is ‘an early African perspective on the particular features of colonial genocide’. See, however, Kössler, ‘Sjambok or Cane?’ (n 67) 705–​6. 74  The Statement was published separately in November 1918 as part of the Blue Book on The Wishes of the Native of the German Colonies as to Their Future Government,  10–​21.

156

156

The ‘Africa Blue Books’ at Versailles

which set out the ‘Summary of Examples of Offences’, ‘for lack of space’.75 As a result, the erasure of Africans by the Commission in their Report was itself erased in its reproduction. These failings in the archive undoubtedly contribute to the silencing of the story of the Africa Blue Books at Versailles, and crimes against Africans generally, however their explanatory (and exculpatory, perhaps) value for historians is limited. After all, while Lemkin’s would-​be History of Genocide was poorer for not having access to the Africa Blue Books, he nevertheless planned to include the ‘Herero genocide’ and other colonial violence in his study (placing him ahead of his fellow historians, even to this day). The silencing of this past has as much, if not more, to do with the manner in which historians continue to centre their narratives about the past around the experiences of Europe and Europeans. Even when those stories take place in Africa. Here, the multiple (and ongoing) afterlives of Forester’s The African Queen are instructive.

Centring European Perspectives, Again and Again Forester’s 1935 novel has been particularly generative.76 In 1951 it was made into a film starring Humphrey Bogart and Katherine Hepburn, the success of which cemented The African Queen’s status as a cultural icon and the main source of public knowledge in the West regarding the ‘African theatre’.77 The 1951 film itself generated a lot of secondary literature, both fictional and non-​fictional, much of it about the ‘nightmare’ of making the film in Africa.78 Driven by the desire to hunt ‘big game’, The African’s Queen’s director John Huston decided to shoot the film ‘on location’. Although ‘German Central Africa’ was not then, or ever, a place, various locations were found in the Congo and Uganda. The frenzied ‘adventures’ of the film’s star cast and crew shooting in technicolour in ‘Darkest Africa’ soon became the stuff of legend. The story of the making of The African Queen—​as told in the press at the time and later in a memoir by Hepburn79—​took the familiar form of part ‘Africa as a “White Man’s Grave” ’ and part ‘Africa as the testing ground of character’, with all the characters and tropes one might expect, including claims of cannibalism—​‘one of the most persistent conventions’ in European writing about Africa.80 The story remained unchanged when it was made into a documentary in 2010 called Embracing Chaos: Making the African Queen, which repeated these persistent conventions.

75  Notably, the American Journal of International Law found space for the reservations of the US and Japan, as well as a ‘guilt clause’ for insertion in treaties signed with ‘Enemy Governments’. 76  Most recently, in February 2017 The Economist ran a story titled ‘African Queen: The Hardships of Doing Business in Africa’, which considered ‘[w]‌hat a century-​old German ship says about trade in the modern continent’. 77  It was followed by another less successful film version in the 1970s. 78  Katherine Hepburn, The Making of “The African Queen”: Or How I Went to Africa with Bogart, Bacall and Almost Lost My Life (Random House 1987). 79 Ibid. 80  Hammond and Jablow, The Myth of Africa (n 6) 95.

157

Centring European Perspectives, Again and Again

157

It was equally productive in terms of fiction. In 1953 one of its screenwriters, Pieter Viertel, wrote a roman a clef about the antics of Huston in Africa. The novel, White Hunter Black Heart, was a close rendition of Conrad’s tale; a point made not-​so-​subtlety by book’s dusk-​jacket (‘The impact of savage Africa on a civilized man’, on the front, and ‘Because it took Africa to strip the civilization from the man. And show him in the raw—​as he really was!’, on the back).81 The Heart of Darkness was referenced by the characters themselves, with Veirtel’s stand-​in noting that ‘[e]‌verything Conrad had said in thousands of words about the black stagnant river where Kurtz had died was echoed in Wilson’s [ie Huston’s] pronunciation of the name of that continent’.82 It was a New York Times bestseller.83 In 1990 Viertel’s White Hunter Black Heart was turned into a film Directed by Clint Eastwood, in which he played the role inspired by Huston; the film turned out to be about Clint Eastwood in fact, and has generated even more scholarship. In all of these iterations and re-​iterations of the story, which are all set in Africa, there are no African characters; the subjects of these stories remain the White subject (whether it be Huston, Hepburn, Viertel, or Eastwood) losing or finding herself or himself in an Africa ‘devoid of all recognizable humanity’.84 The tropes and motifs (of Dark Africa, savages, cannibalism) remain pretty much unchanged, despite the differences in time, subject-​matter, genre, and format.85 The only bit-​part African character to emerge is that of Kivu in White Hunter Black Heart, taking on of the role of ‘naked hunter’ and ‘loyal servant’ to Wilson. However, in contrast to the numerous White settler characters, Kivu does not speak (his rare communications are made through a White settler interpreter), and ultimately he is sacrificed at the end of the story in order for Wilson’s story arc to be completed. Not one version of the story foregrounds the German raid at the outset that ‘swept off the entire village . . . to be soldiers in the Army of German Central Africa’, or considers it from the perspective of the ‘villagers’ who were forced into becoming soldiers or porters. This was not an isolated incident. In fact, the majority of African participation in the First World War was in the form of so-​called ‘porters’ (who the Europeans troops depended on in order to survive),86 with over a million Africans doing so in East Africa alone.87 The experience of these ‘porters’ were in reality often

81  The back of the book read: ‘Because it took Africa to strip the civilization from the man. And show him in the raw—​as he really was!’ (emphasis in original). As Hammond and Jablow note, within the convention of writing about Africa ‘[t]‌here was, usually, no better situation for the display of manly heroics than in the hunting of big game’. Ibid. 57. 82  Pieter Viertel, White Hunter Black Heart (1953). 83  Richard Hutson, ‘ “You Can’t Hunt Alone”: White Hunter Black Heart’ in L. Engel and D. Cornell (eds), New Essays on Clint Eastwood (2012) 129. 84  Achebe, ‘An Image of Africa’ (n 6) 1790. 85  There are interesting inter-​European nuances, particularly around race, in Viertel’s White Hunter Black Heart and Eastwood’s film version thereof. See D. Cornell, Clint Eastwood and Issues of American Masculinity (Fordham University Press 2009) 173–​4. 86  John Iliffe, A Modern History of Tanganyika (Cambridge University Press 1979) 240. 87  Michael Pesek, ‘The War of Legs: Transport and Infrastructure in the East African Campaign of World War I’ (Summer 2015) 5(2) Transfers 102–​20, 102.

158

158

The ‘Africa Blue Books’ at Versailles

more like slavery, from their ‘recruitment’ to their treatment,88 and as a result the casualty rates were staggeringly high (300,000 deaths, and possibly more).89 Most of the deaths were caused by exhaustion, hunger, and disease, but at times unarmed ‘porters’ were specifically targeted because of their military value.90 This widespread practice would amount to a crime against humanity by today’s standards.91 In this respect the afterlives of The African Queen, both in form and content, mirror the histories of African victims in the First World War and in international criminal law more generally, which continue to centre the experience of Europeans. Even recent histories that have turned their attention to the ‘African theatre’ of the First World War continue to focus on European or White experiences. Sampson’s recent World War I in Africa: The Forgotten Conflict Among the European Powers (2013) is a telling example, as in seeking out the ‘humanness’ of the colonial front, Samson finds only the humanity of White men.92 While Paice’s World War I: The African Front (2008) is more detailed in his coverage of Africans’ experience of the war, its opening passage (that ‘Africa mattered to the European powers at the beginning of the twentieth century’), as Moyd points out, ‘centres European desires for mastery over Africa in the narrative’.93 Similarly, one recent history of international criminal law that (quite exceptionally) devotes a chapter to ‘Colonialism’, still focuses unduly on ‘European’ experiences. The ‘Colonialism’ chapter in War Crimes, Genocide, and Justice: A Global History begins with the story of Rachel Plummer Parker—​a White Texan settler who was kidnapped by Native Americans in 1836—​and includes her brutal account of the murder and mutilation of her newborn child (who was ‘literally torn to pieces’).94 When it comes to discussing what Crowe glibly calls ‘the African colonial scene’,95 he begins by discussing the slave trade and King Leopold’s violent exploitation of the Congo (centring the role of ‘enlightened’ Europeans in ending both),96 then turns his attention to German atrocities in South West Africa. While Crowe does discuss the Herero and Nama ‘uprising’ and the ‘extermination order’ issued by von Trotha—​noting that ‘some scholars call [it] the first act of genocide in modern history’97—​he does not dwell on it for more than a page, nor does he refer back to it in subsequent discussion of genocide (in contrast to the Armenian genocide). No 88  Ibid. 107. The treatment of ‘porters’ by the British and Belgians was not much better. See ibid. 109–​11 and 111–​13, respectively. 89  Ibid. 113–​14. 90  Ibid. 114. 91  See Art 7(1)(c), Rome Statute and The Rome Statute Elements of Crimes, 6. See further, Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organization to examine the observance by Myanmar of the Forced Labour Convention, 1930 (No 29) Geneva, 2 July 1998, para 204. 92  Primarily Jan Smuts and Paul von Lettow-​Vorbeck. See A. Sampson, World War I in Africa: The Forgotten Conflict Among the European Powers (I.B. Taurus 2012), 1. 93  Moyd, ‘Centring a Sideshow (n 61). 94  Crowe citing S.C. Gwyne, Empire of the Summer Moon: Quanah Parker and the Rise and Fall of the Comanches, the Most Powerful Indian Tribe in American History (2010) 36–​41. Plummer’s account was published in 1838 as Rachael Plummer’s Narrative of Twenty One Months’ Servitude as a Prisoner Among the Commanchee Indians. 95  David M. Crowe, War Crimes, Genocide, and Justice: A Global History (2013) 72. 96  Ibid.  70–​1. 97  Ibid. 72.

159

Narrative, Metaphor, and Conventional ICL Histories

159

mention is made of the 1918 Africa Blue Book. In contrast, Crowe spends a significant amount of time on the atrocities committed against White settlers during the Second Ango-​Boer War (1899–​1902).98 In fact, much of Crow’s Colonialism chapter focuses on the ‘savagery’ of non-​European peoples, directed against the European colonizers and one another.99 Returning to the Haitian analogue, for Trouillot this ‘unthinkable’ revolution has been erased from global history for a number of reasons, but ultimately ‘the silencing of that revolution has less to do with Haiti or slavery than that it has to do with the West’.100 It is silenced because it contradicts ‘most of what the West has told both itself and others about itself ’; rendered a ‘distracting footnote within [the] narrative order . . . of global domination’.101 As a result, no single ‘great book nor even a substantial increase in slave resistance studies will fully uncover [this] silence’; rather it will persists ‘as long as the history of the West is not retold in ways that bring forward the perspective of the world’.102 In a similar fashion, the silencing of the story of the Africa Blue Books at Versailles has as much to with the way in which it contradicts much of what international criminal lawyers has told itself and other about itself, and it will likely remain a ‘distracting footnote’ until such time as the history of international criminal law is ‘retold in ways that bring forward the perspective of the world’.

Narrative, Metaphor, and Conventional Histories of International Criminal Law The ‘content of the form’: the literariness of international criminal law histories Recovering the story of the Africa Blue Books at Versailles opens up numerous possibilities for re-​telling the history of international criminal law. Taking its lead, other historic ‘milestones’ might be revisited or new ones introduced, where crimes committed against Africans have been overlooked or colonialism’s long shadow ignored. For example, Nuremberg might be revisited with an eye on the unacknowledged role of atrocities against Africans on the definitions of crimes, the downplaying of colonialism’s role in both the war’s initiation and execution, 103 or the presence of colonial and racial politics from the projects outset.104 98  Ibid.  75–​77. 99  Ibid. 47. 100 Trouillot, Silencing the Past (n 58)106. 101  Ibid. 107. 102  Ibid.  106–​7. 103  A subject gradually receiving much deserved attention. See Sven Lindquist, Exterminate All the Brutes (1996); Enzo Traverso, Origins of Nazi Violence (2003); Jurgen Zimmerer’, ‘Colonialism and the Holocaust’ in Dirk Moses (ed), Genocide and Settler Society (2004); Isabel V. Hull, ‘Military Culture and the Production of “Final Solutions” in the Colonies’ in Robert Gellately and Ben Kiernan (eds), The Specter of Genocide (2003); Benjamin Madley, ‘From Africa to Auschwitz: How German South West Africa Incubated Ideas and Methods Adopted and Developed by the Nazis in Eastern Europe’ (2005) 35(3) European History Quarterly 429–​64; David Olusoga and Casper Erichsen, The Kaiser’s Holocaust: Germany’s Forgotten Genocide and the Colonial Roots of Nazism (2010). 104  See Christopher Gevers, ‘Africa and International Criminal Law’ in Heller, Megret, Nouwen, and Robinson, Oxford Handbook on International Criminal Law (Oxford University Press, forthcoming).

160

160

The ‘Africa Blue Books’ at Versailles

While this episodic revision of international criminal law’s history remains an important task, it risks placing too much emphasis on the individual events. Taking its lead in part from Trouillot’s turn to the broader ‘narrative order’ in which these events are situated, and in part from the literary licence taken with The African Queen, the remainder of this chapter will explore the effects of centering the Africa Blue Books on the historical narratives of international criminal law. More specifically, it will highlight how the conventional histories of international criminal law impose meaning on the ‘events’ that constitute them through ‘narrative’ or ‘narrativization’, and consider briefly how these histories might be re-​narrated (or perhaps un-​narrated) by taking the history of the Africa Blue Books as a starting point. In doing so, the remainder of the chapter takes up Hayden White’s invitation to treat historical texts as literary artefacts, and ‘consider historical narratives as what they most manifestly are: that is to say verbal fictions’.105 White draws attention to the role of narrative in histories, and the relationship between a histories’ form and its content.106 According to White, in addition to appealing to formal ‘discursive arguments’,107 historical narratives gain their ‘explanatory effect’108 through their emplotment: ‘the encodation of the facts contained in the chronicle as components of specific kinds of plot-​structures, in precisely the way that Frye has suggested is the case with “fictions” in general’.109 These stories are not found in the historical events themselves (which are ‘value neutral’,110 and ‘no given set of causally recorded historical events in themselves constitute a story’, ‘as “stories” waiting to be told’111); rather the ‘events are made into a story by the suppression or subordination of certain of them and the highlight of others, by characterization, motific repetition, variation of tone and point of view, alternative descriptive strategies and the like—​in short, all of the techniques that we would normally expect to find in the emplotment of a novel or a play’.112 In addition, this narrativization113 of a set of event involves ‘elements of figuration, tropes and figures of thought . . . without which the narrativization of real events, the transformation of a chronicle into a story, could never be effected’.114 For White this figuration was ultimately a question of tropology.115

105  Hayden White, ‘The Historical Text as Literary Artifact’ (1974) 1(3) Clio 277–​303, 278. See further White, Metahistory: The Historical Imagination in Nineteenth-​Century Europe (John Hopkins University Press 1973) ix. 106  Arguing that ‘historiography is a species of the genus narrative, rather than the reverse’. Hayden White, ‘The Structure of Historical Narrative’ (1972) 1(3) Clio 5–​20, 5. 107  For White, an explanation by formal argument, ‘provides an explanation of what happens in the story by invoking principles of combination which serve as putative laws of historical explanation’. White, Metahistory (n 106) 11. 108  White, ‘The Structure of Historical Narrative’ (n 107) 5. 109  White, ‘The Historical Text as Literary Artifact’ (n 106) 280. 110  Ibid. 281. 111  Hayden White, ‘The Value of Narrativity in the Representation of Reality’ (1980) 7(1) Critical Inquiry 5–​27, 10. 112  White, ‘The Historical Text as Literary Artifact’ (n 106) 281. 113  Hayden White, ‘The Question of Narrative in Contemporary Historical Theory’ (1984) 23(1) History and Theory 1–​33, 20. 114  Ibid. 24. 115 Ibid.

16

Narrative, Metaphor, and Conventional ICL Histories

161

While much of White’s scholarship focusses on emplotment through the specific ‘story-​types’ or ‘plot-​structures’116 (chiefly romance, tragedy, comedy, irony, as well as satire and epic),117 his earlier discussion of historical narratives as an ‘extended metaphors’ is particularly apt for decoding the ‘symbolic structure’ (or the ‘content of the form’) of international criminal law histories. According to White:118 As a symbolic structure, the historical narrative does not reproduce the events it describes; it tells us in what direction to think about the events and charges our thought about the events with different emotional valences. The historical narrative does not image the things it indicates; it calls to mind images of the things it indicates, in the same way that a metaphor does . . . [I]‌t gives directions for finding the set of images that are intended to be associated with that thing. It functions as a symbol, rather than as a sign: which is to say that it does not give us either a description or an icon of the thing it represents, but tells us what images to look for in our culturally encoded experience in order to determine how we should feel about the thing represented.

In this way, ‘neither the form nor the explanatory power of narrative derives from the different contents it is presumed to be able to accommodate’.119

‘[P]‌lacing nature at the bottom of history’: The ‘organistic’ trope of international criminal law histories Focusing on the ‘specifically literary aspects’ of histories of international criminal law—​‘as crucial, and not merely subsidiary, elements [of ] historiographical technique’—​is revealing in a number of respects.120 In addition to being linear121 and progressive,122 the narratives of conventional histories of international criminal law draw extensively on figurative language, and in particular organicism.123 This ‘organistic’ language operates at multiple ‘levels of conceptualisation’ of the historical field—​its events, its plots, its arguments (organicism), and perhaps its ‘deep structure’—​but the focus here is on how it metaphorically structures international criminal law’s historical narrative. In other words, how this extended organicist metaphor—​through the language of both ‘creation’124 and 116  Which, according to White, ‘we conventionally use to endow the events of our lives with culturally sanctioned meanings’. White, ‘The Historical Text as Literary Artifact’ (n 106) 287. 117  Broadly speaking, international criminal law histories could be characterized as being emplotted through ‘epic’ or ‘romantic’ story-​types. 118  White, ‘The Historical Text as Literary Artifact’ (n 106) 290–​1. 119  Ibid. 301. 120  White, ‘The Historical Text as Literary Artifact’ (n 106) 300. 121  Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Christine Schwobel (ed), Critical Approaches to International Criminal Law: An Introduction (Routledge 2014) 159–​79. 122  David Koller, ‘. . .  and New  York and The Hague and Tokyo and Geneva and Nuremberg and . . . : The Geographies of International Law’ (2012) 23(1) European Journal of International Law 97–​119,  100. 123  In some accounts this metaphor is so prevalent as to operate as what White called an organicist argument of historical explanation: in which the historian structures a narrative ‘in such a way as to depict the consolidation or crystallization, out of a set of apparently dispersed events, of some integrated entity whose importance is greater than that of any of the individual entities analyzed or described in the course of the narrative’. White, Metahistory (n 106) 15. 124  See, eg, Schabas, Introduction to the International Criminal Court (n 62) 13; A. Zimmerman, ‘The Creation of a Permanent International Criminal Court’ (1998) 2 Max Planck Yearbook of United

162

162

The ‘Africa Blue Books’ at Versailles

‘evolution’125—​‘charges our thought about the events with different emotional valences’, ‘gives directions for finding the set of images that are intended to be associated with [it]’, and ‘tells us what images to look for in our culturally encoded experience in order to determine how we should feel about [it]’. This extended organistic metaphor operates both at the level of the historical narrative’s story elements, and its plot as a whole. The four predominant stories of international criminal law are figured as follows: The ‘inaugurating event’ of the narrative, the ‘failed’ attempts at prosecution following the First World War, are figured as ‘Abortive Early Attempts’, or at least ‘premature’.126 Then, Nuremberg is represented the ‘birth’127 of international criminal law (and Tokyo its ‘sibling’).128 The ad hoc tribunals of the 1990s, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), are ‘progeny’, 129 that were ‘joined at the hip’.130 The ICC, perhaps the ‘terminating’ event, is figured as the ‘evolution’ of these previous events.131 This structure is reinforced rhetorically through the use of ‘elements of figuration, tropes and figures of thought’.132 What, then, is the content of this form? Broadly speaking, this organistic trope reinforces the legitimacy of the international criminal law project by—​as Barthes put it—​‘placing nature at the bottom of history’.133 It naturalizes the gradual and progressive development of international criminal law, and neutralizes criticism of it in the process. It evokes a ‘discourse of preservation’134 that insulates both the Nations Law 169. It has been this way since ‘the beginning’, it seems. See Convention for the Creation of an International Criminal Court, League of Nations Official Journal, Special Supplement 156 (1938); A. Sottile, The Problem of The Creation of a Permanent International Criminal Court (1951). 125  See, eg, Timothy L.H. McCormack, ‘From Sun Tzu to the Sixth Committee, The Evolution of an International Criminal Law Regime’ in Timothy L.H. McCormack and Gerry J. Simpson (eds), The Law of War Crimes, National and International Approaches (The Hague 1997); Philippe Kirsch and John T. Holmes, ‘The Rome Conference on an International Criminal Court: The Negotiating Process’, AJIL; Bantekas and Nash, International Criminal Law (n 62) ‘Preface’; Bassiouni, Introduction to International Criminal Law (n 12); M. Cherif Bassiouni, ‘International Criminal Justice in Historical Perspective: The Tension Between States’ Interests and the Pursuit of International Justice’ in A. Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 132; Schabas International Criminal Law; Gerhard Werle and Florian Jessberger, Principles of International Criminal Law (n 12) 1, 2, 26. 126 Schabas, Introduction to the International Criminal Court (n 62) 5. 127 Werle and Jessberger, Principles of International Criminal Law (n 12)  5; Claus Kreß, ‘The International Criminal Court as a Turning Point in the History of International Criminal Justice’ in A. Cassese (ed), The Oxford Companion to International Criminal Justice (Oxford University Press 2009) 143; and Bantekas and Nash, International Criminal Law (n 62) ­chapter 12. 128  See Cryer et al, Introduction to International Criminal Law (n 12) 571. 129  Cryer et al, Introduction to International Criminal Law (n 12) 102. 130 Schabas, Introduction to the International Criminal Court (n 62), 12. 131 See ibid.13. A.  Zimmerman, ‘The Creation of a Permanent International Criminal Court’ (n 125). It has been this way since ‘the beginning’, it seems. See Convention for the Creation of an International Criminal Court, League of Nations Official Journal, Special Supplement 156 (1938); A. Sottile, The Problem of The Creation of a Permanent International Criminal Court (n 125). 132  White, ‘The Question of Narrative in Contemporary Historical Theory’ (n 114) 24. 133  Roland Barthes, Mythologies, trans. by Annette Lavers (Hill & Wang 1972) 101. 134  Samuel Moyn, ‘Anti-​Impunity as Deflection of Argument’ in Engle, Miller, and Davis (eds), Anti-​Impunity and the Human Rights Agenda (Cambridge University Press 2017).

163

Narrative, Metaphor, and Conventional ICL Histories

163

project as a whole and its institutions, past and present, from critique. Consider the following passage, written in 1978, reflecting on the importance of Nuremberg:135 It is the virtue of the Nuremberg trial that it was conceived in hatred of war, and was nurtured by those starved of peace. To realize how grateful we should be for this birth, consider the alternative.

Notably, the story of the Africa Blue Books at Versailles does not simply undermine the ‘comprehensive dramatic unity’136 of conventional historical narratives of international criminal law, it threatens to ‘disfigure’ such narratives altogether.

Un-​narrating and re-​narrating international criminal law’s organistic narrative The story of the Africa Blue Books not only challenges the content of conventional histories of international criminal law by re-​telling its ‘inaugurating event’ (i.e. Versailles), it threatens to subvert it altogether by undermining (un-​narrating) its ‘organistic’ form in two respects. First, it undermines the ‘organistic’ figuration the field’s transformation over time: that is, that international criminal law’s authority (and impact) has ‘evolved’ or ‘developed’ organically—​which is to say gradually but inevitably—​from the weak and ‘abortive’ attempts at Versailles, to Nuremberg and ultimately the ‘revolutionary’ establishment of the ICC in The Hague: each a small but significant step (towards a common telos). This aspect of the narrative explains away international criminal law’s early ‘failings’ as ‘growing pains’ and displaces responsibility for the consequences of any such failings. The characterization of Versailles both as weak and ultimately without effect (as a non-​event) is central to this organicist narrative, however the story of the Africa Blue Books undermines both aspects of this characterization. The erasure of atrocities committed against Africans at Versailles was neither weak nor without consequence, regardless of whether the trials took place. It inaugurated a politics of exclusion and difference. The significance of Versailles, then, lies not in the shortcomings (or weakness) of the trials that ultimately took place, but the impossibility of any such trials taking place in respect of crimes committed against Africans.137 This re-​characterization of Versailles as an event in this narrative disfigures its organistic metaphor that it inaugurates, from one of gradual evolution to immediate exclusion. Second, it undermines the spatial figuration of this narrative, in which international criminal law expands organically from Europe outwards:  beginning in Versailles, it moves north to Nuremberg (a brief but inconsequential detour to Tokyo), then back to The Hague. It is only in the 1990s that it ‘comes to Africa’; first 135  R.West, ‘Foreword’ in A. Neave, Nuremberg: A Personal Record of the Trial of the Major Nazi War Criminals (Hodder & Stoughton 1979). 136  White, ‘The Structure of Historical Narrative’ (n 107) 5. 137  On some accounts, this exclusion, alongside the instrumentalization of Africa suffering for other (now neo-​colonial) ends, continues to this day.

164

164

The ‘Africa Blue Books’ at Versailles

tentatively with Arusha, and then dramatically with introduction of the permanent and ‘universal’ ICC, with African states becoming the largest geographic signatory bloc of the Rome Statute. Notably, it maps the commonly held myth amongst historians of ‘Eurocentric diffusionism’, the idea that the ‘natural, normal, logical, and ethical flow of culture, of innovation, of human causality’ is from Europe outwards, to the non-​European world.138 In contrast to this spatial figuration, the Africa Blue Books suggest that international criminal law was global from the outset, Africans were included in the narratives of suffering produced during the war, and then excluded from the mechanisms of putative redress at Versailles. Finally, the story of the Africa Blue Books at Versailles might also serve to re-​ narrate the history of international criminal law in subversive ways. Such re-​ narration might maintain the ‘organistic’ trope generally, but invert the symbolism so that the seed of racial exclusivism that characterizes the practices of the ICC today was planted at Versailles. Alternatively, the historical field might be re-​narrated (or ‘re-​structured’)139 using an different metaphors or ‘story types’; for example, the Africa Blue Books could inaugurate an ironic narrative, of ‘recurrence or causal catastrophe’.140

Concluding Remarks The African Queen (the novel) ends with a trial for ‘high crimes’ which, in contrast to Versailles, almost didn’t happen owing to public opinion (or the apprehension thereof ). The trial of Charlie Alnutt by the Germans on board the Konig Luise, after his rescue from the waters of ‘Lake Wittelsbach’, was included in the version Forester submitted for publication. However, it was taken out by the American publishers who disliked the ending and decided to cull the novel’s final three chapters; ending the novel with the sinking of the ‘African Queen’ in a storm, and with it ‘the gallant attempt to torpedo the Konigin Luise for England’s sake’.141 With Forester’s intervention The African Queen was re-​issued a few months later with the final three chapters included. However, like at Versailles, justice would not run its course; an obstinate Alnutt is on his way to getting hung as a British spy when the appearance of his co-​conspirator Rose dramatically changes the judges disposition: [T]‌here could be no question now of espionage and the death penalty. He could not hang one person without the other, and he never thought for a moment of hanging Rose. He would not have done so event if he thought her guilty; white women were so rare in Central Africa that he would have thought it monstrous.

138  J.M. Blaut, The Colonizer’s Model of the World: Geographical Diffusionism and Eurocentric History (Guilford 1993) 1. 139  White, ‘The Historical Text as Literary Artifact’ (n 106) 298. 140  Northrop Frye, Anatomy of Criticism: Four Essays (Princeton University Press 1957), quoted in Hayden White, ‘The Historical Text as Literary Artifact’ (n 106) 277–​303, 278. 141 Forester, The African Queen (n 1) 275.

165

Concluding Remarks

165

Underlying the mercy shown Rose (a stark contrast to that of Edith Cavell) was a nod—​not for the first time in the novel—​to the overriding imperatives of colonialism and the civilizing mission. These same overriding imperatives supposedly informed the role that was played by the two Africa Blue Books at Versailles, where the suffering of the ‘subject peoples’ of Germany were central to the discussions about Mandates. In fact, the second Blue Book had been written with the disposition of Germany’s ‘South West African’ colony in mind, in order to support the claim—​ made by Lord Robert Cecil in August 1918—​that ‘Germany ha[d]‌no moral right to colonies’.142 In this regard the two Africa Blue Books were overwhelmingly successful.143 The centrality of both Atrocity Blue Books (as well as other reports of German colonial violence) to the decision to remove Germany’s colonies in ‘the interests of the native populations’ was clearly stated by the Allied and Associated Powers’ response to German objections thereto:144 Reference to the evidence from German sources previous to the war, of an official as well as a private character, and to the formal charges made in the Reichstag . . . will suffice to throw full light upon the German colonial administration, upon the cruel methods of repression, the arbitrary requisition and the various formed of forced labor which resulted in the depopulation of vast expanses of territory in German East Africa and the Cameroon, not to mention the tragic fate of the Hereros in South West Africa, which is well known to all.

The end result was that while crimes against European bodies were to be the subject of criminal retribution in the name of ‘humanity’, those committed against Africans were instrumentalized for their further domination, or as Read put it, ‘provided a convenient moral cloak for the division of the spoils’.145 The suffering of Africans was similarly instrumentalized in Viertel’s 1953 novel (White Hunter Black Heart) inspired by the making of The African Queen film, albeit for slightly different ends. As with both the original and film version of The African Queen, there was some debate about the ending of Viertel’s novel. In his 1992 a memoir ,Viertel recalls his discussion with Huston about the ending as follows:146 In a few sentences I described the ending I had planned. He listened attentively. ‘The director shoots an elephant, a cow,’ I told him. And the herd, led by three or four males, destroys a native village. The end is a total disaster for the natives that live in the village. He shrugged. ‘Yeah . . . I suppose that’s a pretty good ending,’ said. ‘But I feel it would be better if there was a personal disaster, the death of someone close to your hero that results from the shooting the elephant.’ 142  Mary E. Townsend, The Rise and Fall of Germany’s Colonial Empire 1884–​1918 (Howard Fertig 1930) 375. 143  As Read notes: ‘The job was so well done that Lloyd George at the Peace Conference was not required to produce an official memorandum which has been prepared to prove Germany’s unfitness for colonial rule’. Read, Atrocity Propaganda (n 16) 237. 144  ‘Reply of the Allied and Associated Powers to the Observations of the German Delegation on the Conditions of Peace’, published in International Conciliation, No 144, November 1919, 1372. 145 Read, Atrocity Propaganda (n 16) 238. 146  Peter Viertel, Dangerous Friends:  At Large with Hemingway and Huston in the Fifties (Nan A. Talese 1992).

16

166

The ‘Africa Blue Books’ at Versailles

‘The writer? The storyteller?’ He laughed. ‘Not a bad idea, but it won’t work, as you well know. No, I was thinking that Kivu should die, the little black guy with the spear, the chief hunter. What do you think of that? It would have a greater effect on the hero of your piece, be more devastating for him.’ It was an idea that had not occurred to me, but I knew immediately that he was right. ‘I’ll try it,’ I said.

For reasons apparently well-​known to Viertel and Huston, White Hunter Black Heart required African suffering in order for narrative closure to take place, whether it be the destruction of a ‘native village’ or the death of a ‘little black guy with the spear’. In this regard, the fate of the Africa Blue Books at Versailles resembles the literary convention on display in both The African Queen and White Hunter Black Heart—​the portrayal of African suffering that is not an event on its own terms, rather it is introduced in order to serve another purpose, be it colonial geopolitical reordering or European self-​discovery. The 1990 film version of White Hunter Black Heart ends where Forester’s 1935 novel begins, with the director ‘John Wilson’ calling action on the opening scene of the German raid on the village, bringing the story full circle. However, the violence committed against black bodies in the raid itself remains interminably trapped somewhere between the two—​too early for Forester’s novel, too late for Eastwood’s film—​perhaps in the same way that such violence (and colonial violence generally) remains ‘trapped’ within international criminal law—​too early for punishment at Versailles or Nuremberg, but too late for the jurisdiction of the ICC. It would be a mistake, however, to conclude that historically such suffering—​or African suffering more generally—​was simply peripheral to either such literature and films or to international criminal law. Rather, since Versailles Africans have been a necessary ‘present absence’ in international criminal law.

167

10 Crimes Against Humanity Racialized Subjects and Deracialized Histories Vasuki Nesiah

‘We are black, it is true, but tell us gentleman, you who are so judicious, what is the law that says that the black man must belong to and be the property of the white man?’1 With these words, Toussaint Louverture’s 1791 declaration judiciously centres the intricate interdependence of the written and unwritten law of race and draws attention to the scandal of the free and rights-​bearing ‘human’ that was being heralded on both sides of the Atlantic, the Black Atlantic. ‘We are black, it is true, but . . . ’ foregrounds race to interrupt the American and French revolutions’ celebration of the rights-​bearing human, whose assemblage we refer to as ‘humanity’, and whose wrongs our law describes as ‘crimes against humanity’. The Santo Domingo revolution was not only a revolution against slavery, but a staging of the contradiction at the heart of this notion of humanity. ‘What is that law?’ he asks—​Property law? International law setting forth human rights? International Criminal Law prohibiting crimes against humanity? Toussaint’s provocation marks how that unmarked law codes racialized property into a notion of humanity constituted through property relations between Black-​humans-​as-​property and White-​humans-​as-​property-​ owners. If the logic of the human rights revolutions is predicated on, and promises, the self-​possession of the white man, it also implicitly, yet unequivocally, affirms and enacts the dispossession of the Black man. Toussaint’s question regarding race and erasure is an interruption that survives as a haunting, a repressed memory of the work of racialized ‘humanity’ in circuits of property and capital that pushes against the consciousness of the age of liberty signalled by the North Atlantic revolutions of that era.2 As W.E.B. Du Bois, Eric Williams, and others have shown, the triangular trade played a critical role in the political economy of industrial revolutions that twinned 1  Toussaint Louverture, ‘To Live Free or Die’ in The Haitian Revolution (Edited by Nick Nesbitt, Verso 2008). 2  The notion of interruption here follows Jacques Ranciere’s discussion of politics as an interruption of, or dissensus with, the logic of humanity, in this case by foregrounding, via Toussaint, racialized property as the ontological basis for that logic. Ranciere, Dissensus: On Politics and Aesthetics (Continuum Publishing Group 2010). Crimes Against Humanity: Racialized Subjects and Deracialized Histories. Vasuki Nesiah. © Vasuki Nesiah, 2019. Published 2019 by Oxford University Press.

168

168

Racialized Subjects and Deracialized Histories

the liberal revolutions of the late seventeenth century.3 The men and women forcibly transported from Africa worked the cotton fields in the Americas to supply raw material for the looms of Manchester.4 One can tell a parallel story regarding slavery, sugar plantations, and the sugar trade that was central to the wealth of Europe. Indeed, at the time of revolutionary ferment on both sides of the Atlantic, Toussaint Louverture’s Haiti was the wealthiest colony in the world.5 The memory of that fundamentally racialized trade and its centrality to the social, political, and economic underpinnings of the liberal revolutions continues to haunt histories of the politico-​ legal subject ‘humanity’ that reach back to claim their humanist origins in those very revolutions. It is a memory that reveals a racialized text that has a particular grammar, juridical and ethical, that shapes central features of contemporary international criminal law and its claims to act in the name of humanity.6 In 1807 the British parliament and American congress passed legislation banning the international slave trade. Over the next decades this ban was echoed in the policies of other European powers though bilateral treaties and legislative initiatives. The prohibition of the international slave trade was adjudicated in various fora on both sides of the Atlantic. These included treaty born transnational tribunals with jurisdictional authority that went beyond national borders and national courts and sought to exercise what some have described as an embryonic form of universal jurisdiction. Jenny Martinez describes the work of these tribunals (the ‘Mixed Commissions’) as the earliest precedent to the International Criminal Court (ICC), and what she refers to as ‘the original crimes against humanity’.7 The British and American legislative initiatives prohibiting the international slave trade have often been read as extending the logic of the age of liberty; indeed some may even saw these as a kind of answer to Toussaint. And yet . . . In 1807, slavery itself was legal and thriving in sugar plantations in the Caribbean, in the gold mines of Columbia, and in the cotton fields of America. Astoundingly, while the slave trade was abolished in 3  W.E.B. Du Bois, The Suppression of the African Slave Trade to the United States of America (Oxford University Press 2014); Eric Williams, Capitalism and Slavery (University of North Carolina Press 1944); Lisa Lowe, The Intimacy of Four Continents (Duke University Press 2015). 4  Cedrick Robinson, ‘The Atlantic Slave Trade and Atlantic Labor’ in Black Marxism (University of North Carolina Press 1983); Walter Johnsons, River of Dark Dreams: Slavery and Empire in the Cotton Kingdom (Belknap Press 2017). 5  http://​www.hougansydney.com/​haiti/​saint-​domingue-​became-​the-​richest-​colony-​in-​the-​world. 6  This chapter draws on several traditions of legal scholarship but I want to highlight its particular debt to critical race theory. While the tradition associated with Third World Approaches to International Law (TWAIL) has long been influenced by critical race theory, it has been slow to examine the constitutive role of race in international legal history. This chapter seeks to address that by drawing extensively from the insights and analysis that critical race theory has brought to domestic law. 7  Jenny Martinez, The Slave Trade and the Origins of the International Human Rights Law (Oxford University Press 2014) 6. The redemptive story of this period as central to the origins of the international human rights movement is told by many scholars, including Lynn Hunt, Adam Hoschild, and Jenny Martinez. While I engage with Hunt and Hoschild, it is Martinez who is my primary interlocutor in this chapter. Martinez offers by far the most ambitious effort to draw attention to the Mixed Commissions both for their remarkable contributions in their time, and for their promise in grappling with dilemmas confronting the international criminal court today. She connects the dots between then and now in terms of law and morality to write a narrative about judicious institutional purpose. As elaborated in this chapter, the story about the explicit and implicit role of race in this history is most prominent in its absence.

169

Racialized Subjects and Deracialized Histories

169

1807, slavery in the Americas continued to be legal, thriving, and central to the political, economic, and social life of Europe—​and of course the Americas—​for many decades. Given these dynamics it is not surprising that a fourth of the slaves transported in the transatlantic slave trade, were transported in the sixty years following the 1807 legislation prohibiting the international slave trade. Inspired by the provocation posed by Toussaint’s interrogation of the human and humanity in the liberal consciousness of the period, this chapter asks questions about the racial subtext of liberty in histories of the Mixed Commissions as the origins of international criminal law (henceforth ICL).8 It is a world order built on racial capitalism but there is little explicit mention of race in the human rights histories of these mid-​nineteenth century tribunals. The work of the category ‘crimes against humanity’ is to narrow our lens to juridically recognized perpetrators; a lens that then narrows our attention to focus on the drama of the slave traders as moral outlyers. At the same time, it helps clear the stage of the structural conditions that fuel the trade, including the racialized logics of profit and property that shape the social fabric of racial difference and exploitation. The figure of the slave trader emerges as that of an exceptional perpetrator, a monstrous embarrassment to his society and a departure from the forward momentum of the age of liberty; his most remarkable and enabling characteristic in the slave trade is not the structure of racial difference but his moral pathology. Indeed, the monstrosities of this perpetrator of ‘Crimes Against Humanity’ sanitizes the ‘ordinary’ exploitation and violence of racial capitalism that sustains the majority of humanity’s profiteers.This channelling of all the political condemnation on to the slave trader, a cipher for all that is evil and depraved,9 is central to the denial of what Saidiya Hartman describes as ‘the entanglements of slavery and freedom’10—​entanglements that extend from settler colonialism to racial capitalism. A second and related dimension of racial erasure shapes the history of the abolition of the slave trade. If the work of ‘crimes against humanity’ is to narrow our lens to individual perpetrators such as the slave trader, the work of the campaign against ‘crimes against humanity’ is to turn our lens to the abolishionists in England and America, scripted here as the redemptive heroes of the ‘international’. Here too the erasure of race (including the struggles of the enslaved and the colonized) from the story of the liberal revolutions, further expels the entanglements of liberty and its other from the stage of ICL history. Instead, the social movements and tribunals set up to implement the abolition of the slave trade are presented as the crowning glory of these same revolutions. ICL histories posit a progress narrative regarding legal developments that overcomes race, and expels race from the narrative, just as the notion of the human is presented as trumping racial distinction. The ‘human’ sheds the weight of racial baggage—​what Alexander Weheliye describes as ‘excess’—​to 8  In referring to histories of the Mixed Commissions, this chapter is referring only to histories of the Mixed Commissions that situate it in relation to international criminal law and human rights. 9  Jenny S. Martinez and Lisa Surwillo, ‘“Like the Pirate and the Slave Trader Before Him”: Precedent and Analogy in Contemporary Law and Literature’ (February 2017) 35(1) Law and History Review 1. 10  Saidiya Hartman, Scenes of Subjection (Oxford University Press 1997) 151.

170

170

Racialized Subjects and Deracialized Histories

emerge as a svelte, universally inclusive figure that does not implicate the structures and beneficiaries of racial capitalism.11 Indeed, it render them too as victims, as part of the anonymous mass of humanity wronged by the slave trade. Thus the narrowing of the designated perpetrator works alongside the broadening of the designated victim to an all encompassing humanity, not just black humanity. ‘Crimes Against Humanity’ renders the victim abstract, deracialized, universal—​today we might say it is a category that stands for the rallying cry that ‘All Lives Matter’.12 The multi-​pronged deracialization of ‘Crimes Against Humanity’ in ICL’s backstory haunts the notion of the human and the entanglements of the human’s dual record of extraordinary humane solidarities and extraordinary inhumane actions. As Walter Johnson has argued, there is ‘ideological work accomplished by holding on to a normative notion of “humanity”—​one that can be held separate from the “inhuman” actions of so many humans’.13 In understanding the imbrication of the field of ICL history in that ideological work, we need to confront the challenge that Hannah Arendt highlighted in her analysis of Eichmann—​namely, that the most shocking fact about Eichmann was not a rare inhuman monstrosity but a banal human ordinariness. Sanitizing the notion of the human may be a project of masking its internal inhumanities, and its record of complicities, individual and collective, ideational and structural. Johnson notes further that in refusing to confront the dark side of human virtue, ‘We are separating a normative and aspirational notion of humanity from the sorts of exploitation and violence that history suggests may well be definitive of human beings: we are separating ourselves from our own histories of perpetration.’14 This is perhaps yet another articulation of Toussaint Louverture’s challenge. This chapter seeks to revisit the work of the Mixed Commissions in recent histories of ICL by being attentive to the buried histories of race. Through a study of ICL histories that seek to be relevant to contemporary debates, this line of inquiry can contribute to a critical unpacking of the work of ICL history in constructing race and mobilizing racial tropes that continue to have traction today. For instance, tracing how dominant histories of ICL enable racial privilege to travel under colour of law illuminates the edifice on which it builds authority and the distributive consequences of the exercise of that authority. Situating ICL’s imbrication in histories of colonialism and slavery, helps us better understand how the ‘authorship and agendas’ of ICL are rendered obscure by dominant narratives of the field. In short, the foregrounding of race enables a critical reading of what the editors describe as the tropology of ICL histories—​this chapter performs such a reading through a focus on histories of the Mixed commissions and their celebrated role as the origins of ICL and the first grand achievement of the international human rights movement. 11  Alexander Weheliye, Heabus Viscus (Duke University Press 2014). 12  For critical analysis of the ‘All Lives Matter’ turn, see Alicia Graza in interview with Laura Flanders, ‘Building Movements Without Shedding Differences’ Truthout, 24 March 2015, https://​www.truthout. org/​video/​building-​movements-​without-​shedding-​differences-​alicia-​garza/​. 13  p. 14 Walter Johnson, ‘To Remake the World: Slavery, Racial Capitalism and Justice’ (October 2016) Boston Review. 14  Ibid. See also David Kennedy, Dark Side of Virtue (Princeton University Press 2004).

17

Reading Race/Reading Erasure

171

The rest of this chapter has four sections. Section 1 offers some preliminary thoughts about the building blocks of a race foregrounded reading of ICL history. I argue that juridification and moralization are two dimensions of the tropology of ICL history dealing with the Mixed Commissions. Thus in Section 2, I analyse how these histories employ processes of juridification and in Section 3, I examine the function of moralization in that same history. In Section 4, the concluding section, I try to circle back to how those histories shape the inheritance of ICL today to foreground the simultaneously powerful and elusive colour line.

Reading Race/​Reading Erasure In her pathbreaking 1993 essay, Whiteness as Property, the legal scholar Cheryl Harris described how the project of racialization, was not only about identity and affiliation but also, fundamentally, a project of stealth material distribution. ‘Whiteness as property’, Harris argues, ‘has carried and produced a heavy legacy. It is a ghost that has haunted the political and legal domains . . . Only rarely declaring its presence’.15 This haunting of slavery, its abolition and its aftermath, has been pivotal to the effectiveness of this distributive work. Thus this chapter seeks to excavate the life of race in ICL by tracing not race, but its repression. A repression that we trace by listening for the ellipses and wrinkles of ICL histories of the nineteenth century as intimations, however partial and fragmented, of the work of this absent presence. Freudian theories of repressed memory offer a language that helps illuminate the potential significance of this absent presence of race in the artifice of law’s memory. This in any case is the hunch that drives this chapter’s effort to understand ICL’s memory of racialized structures and imaginaries in an earlier era, in, some may say, the infancy of ICL. In one reading of Freud, repressed memories reach back into traumatic childhood experiences that are unconsciously blocked because of association with deep trauma; nevertheless the work of this trauma reveals itself in unexpected ways in the contemporary moment. In this way, repressed memories offer a striking metaphor for decoding the absence of race in ICL histories, tracing its enduring traumas in the life of ICL, and probing its subterranean presence in ICL’s discursive framework. Eighty thousand slaves freed but, extraordinarily, race is itself invisible in the story of the Mixed Tribunals told by many ICL historians. The invisibility of race in cases dealing centrally with race has been a dominant preoccupation of critical race theory (CRT). CRT’s tracking of the subterranean paths that race travels has been focused largely on American jurisprudence but it has much relevance for our understanding of race in ICL. In one of the most influential articles emerging from critical race theory, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, Charles Lawrence proposed that the focus on ‘discriminatory intent’ in American jurisprudence missed the invisible tentacles through which unconscious 15  Cheryl Harris, ‘Whiteness as Property’ (June 1993) 106(8) Harvard Law Review 1707–​91.

172

172

Racialized Subjects and Deracialized Histories

bias reached out to shape cultural meanings that had no explicit racial reference but were saturated with latent racial and racist significance.16 Another giant of critical race theory, Neil Gotunda, in A Critique of ‘Our Constitution is Color Blind’ analysed how purportedly colour-​blind constitutionalism entailed a racist ideology that fostered White supremacy, arguing that ‘A color-​blind interpretation of the constitution legitimates and thereby maintains, the social, economic and political advantages that Whites hold over other Americans’. 17 Both Lawrence and Gotunda demonstrated that racism and racial structures work in complex and elusive ways; more significantly however their work shows how ‘invisibility’, a pivotal forgetting of race, can be constitutive of the power of racism and racial structures. Thus much of the struggle against the adverse power of racial difference has entailed remembering, naming, and rendering visible the work of racial structures and ideologies, understanding the mechanics of invisibility, and exposing how and where racist assumptions drive the plot. Racial capitalism, including the very specific contours of slavery and empire in the seventeenth and eighteenth centuries, was central to the structures and ideologies of the dominant world order. This included centrality to the liberal revolutions that lent their name to the age of liberty, and the Mixed Commissions that are seen to instantiate their spirit in ICL history. To begin with the Mixed Commissions were instituted under the aegis of Anglo-​European and Anglo-​American political and legal authority on territories that had been colonized on both sides of the Atlantic; they asserted jurisdiction over Africans on ships brought before the commission, whether or not they were declared enslaved or freed. In ICL histories of the Mixed Commissions, race is rendered a footnote in a story about the slave trade where European states are the central protagonists, and the story about slave trade emerges as a story about the progressive extension of liberty in ways that overcame racial distinction. The Mixed Commissions were called thus because they had judges from both European parties to the treaty, and had transnational jurisdiction. Courts were initially established in Brazil (an Anglo-​Portuguese court), Cuba (an Anglo-​Spanish court), Surinam (an Anglo-​Dutch court), and Sierra Leone (which included courts representing all of the parties). Over the following decades, Anglo-​Portuguese courts were also set up in Luanda, Boa Vista, Spanish Town, and Cape Town.18 The US eventually signed a treaty with Britain in 1862, agreeing to Mixed Commissions in New York, Cape Town, and Sierra Leone.19 France never consented to the Mixed Commissions but relied on a bilateral treaty with Britain for enforcement of the abolition of the slave trade in national courts. The British navy was the most active in policing the waters for ships in violation of the slave trade; the courts rewarded

16  Charles R. Lawrence III, ‘The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism’ (January 1987) 39(2) Stanford Law Review 317–​88. 17  Neil Gotunda, ‘A Critique of Our Constitution’ (November 1991) 44(1) Stanford Law Review 1–​68,  2–​3. 18  See Leslie Bethel, The Abolition of the Brazilian Slave Trade (Cambridge University Press 1970). 19  However the impact of the 1863 emancipation proclamation soon rendered the legality of the slave trade to the US moot and the Anglo-​American Courts never heard any cases.

173

Reading Race/Reading Erasure

173

the officers who brought in a ship in violation of the trade and confiscated the assets of the owners and took those accused to trial with criminal penalties. If a ship was flying under the flag of one of the treaty parties and was detained under suspicion of being embroiled in the slave trade it was brought to a Mixed Commission where that country was represented.20 Thus Europe proceeded to carve up the Atlantic even before Europe carved up Africa at the infamous Berlin conference. The distribution of jurisdiction through these mixed tribunals (or Mixed Commissions as they were also known) anchor the role of Europe and America in a racialized structure of world order. The Europe and America that empowered itself for and through imperial conquest did it partly by constructing a category of ‘whiteness’, and by mirrored necessity, a racial other. Yet it is not a whiteness that heralds its own presence. Rather it is a whiteness that presents as nothing less than the new world order; here latent in the cosmopolitan institutionalism that seeks to knit together humanitarian aims with international adjudication. The Mixed Commission treaties linking and separating England from America, America from France, France from Spain, Spain from Portugal, Portugal from the Netherlands, and so on, were building blocks in the discursive production of whiteness, an imperial whiteness. A century after the slave trade was abolished, W.E.B. Du Bois reflects on the ‘outlook for the darker races of mankind’ and predicts the persistence of ‘the color line’.21 When Du Bois invokes the ‘color line’ here, he is not speaking of melanin and naturalized racial categories but that line that traverses land and ocean to trace the routes of colonialism and the slave trade. He is invoking the ways in which the discursive construction of racial difference occupy the systemic inequalities and hierarchies of world order in ways that are not captured by a sole focus on the imperial lines of North and South. Indeed, on this view, the colour line stretches both before and beyond the twentieth century that Du Bois references, as the common thread of liberal universalism, from the rights revolution of the seventeenth century to the operation of international institutions in the twenty-​first century. For Martinez the work of the Mixed Commissions are an antidote to the morass of disillusionment that attends the work of international courts today. She advances a redemptive story about the potential of international law and liberal humanism by going back to the tribunals that sat at the historic crossroads of slavery, colonialism, and racial capitalism. Her history remembers those crossroads through an inspiring story of commissions redeeming the promise of international

20  Through the lens of international criminal law, arguably the Mixed Commissions were early precursors to what we now term hybrid courts. However with the history of the Mixed Commissions faded from the collective memory of international criminal law, they were not in fact the precedent or inspiration for the hybrid courts that were set up in Sierra Leone, Timor, or Cambodia. The more proximate point of reference for these were of course the lessons learned from the ad hoc tribunals. 21  ‘The problem of the twentieth century is the problem of the color line: the relation of the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea.’ W.E.B. Du Bois, ‘The Present Outlook for the Darker Races of Mankind’ in Eric Sundquist (ed), The Oxford W.E.B. Reader (Oxford University Press 1996) 47–​54.

174

174

Racialized Subjects and Deracialized Histories

courts as a platform for morality marrying power. In this telling of ICL history, powerful nations are noble protagonists pursuing emancipatory ends. The argument of this chapter is that her ‘colour-​blind’ telling of that linkage may itself be the most critical symptom of that prior trauma of race and its repression. Indeed, the expelling of race from the description of mid-​nineteenth-​century world order is achieved by channelling all the oxygen to a story about ICL’s emancipatory promise. It is a promise materialized, in this story, in the ‘judicious’ work of the Mixed Commissions –​work that we can situate as a symbolic predecessor to a notion akin to ‘all lives matter’. The colour line can be discerned as the shadow of that promise, the dark side of a redemptive story about morality marrying power to fight ‘crimes against (all) humanity’. The repression of race in the historical narrative of then and now is a precondition for telling the story of empire and slavery in the mid-​Atlantic as a story of emancipation. Race is foundational to the plot of Atlantic slavery so to repress that memory and render race invisible in the work of the mixed tribunals requires an elaborate defensive structure, and it is the notion of humanity that helps forge those defences. In Martinez’s articulation of the memory of ICL we don’t hear about a racialized world order but about the emancipation of slaves through humanist adjudication. Thus juridification and moralization emerge as two dimensions of precisely such an elaborate structure—​ two dimensions of a racialized world order that we will address in greater depth in the following sections. Race and racial difference are of course fundamentally historical constructions that mean different things in different social, political, and historical contexts; thus the work of racial difference in the Atlantic then, and in the Hague today, is profoundly different even when connected. However, foregrounding racial capitalism (in both its material and ideational dimensions) opens a window into the work of international criminal law `history. For instance, it can show us how a description of ICL history as conjoining humanitarian aims with international adjudication, offers insight into the racial regimes being instantiated in contemporary ICL. The racialized structure of world order presented by the carving up of inter-​imperial oceanic jurisdiction through the mixed tribunals have their contemporary echo in a parallel conjoining that informs how International Criminal Court (ICC) accession carves up jurisdiction today. The connections between then and now are connections that persist as memory and its repression, not through the persistence of a fixed category termed race but through the shadow of its invocation, including the ambiguities and contradictions that attach to notions of race and racial difference. Then and now race travels as both structure and personhood. It is constituted through, and constitutive of, the over determining architecture of the ICL system, while also being part of how the system is experienced and navigated in its quotidian intimacy. It is part of the institutional arrangements of the global governance regime that includes the domain of ICL. Equally however, it is a part of how individual and collective political subjectivity is inhabited and agency exercised by those occupying particular roles within ICL cases, as victims and perpetrators, lawyers and judges, witnesses and observers, then and now.

175

Juridification

175

Juridification: Translating Racialized World Order into Race Neutral Rule of Law The law does have a canon. It consists of terms like ‘just,’ ‘fair,’ ‘equal,’ ‘equal opportunity,’ ‘unfair to innocent whites,’ ‘nice,’ ‘deserving,’ and ‘meritorious,’ all with canonical meanings that reflect our sense of how things ought to be, namely much as they are. Richard Delgado and Jean Stefancic Hateful Speech, Loving Communities22

The weight of race as part of the legal architecture, as well as the everyday experience of the law was nowhere more evident than at the doors of the Mixed Commissions. Here white men had been presorted according to their nationality—​be they as judges who were going to decide on freedom, or as accused seeking to secure their ‘cargo’. In contrast, black men and women hovered in an interregnum between a regime of property law and a regime of colonial law; they were objects of property and subject to colonial rule on both sides of the Atlantic. In the passage quoted above, Richard Delgado and Jean Stefancic highlight legal terms such as “equal opportunity” that have resonance in contemporary American domestic jurisprudence but the basic insight has relevance for our discussion. ICL historians’ invocation of the legal judgments of the Mixed Commissions provides a window into the work of canonical legal terms in the global racial ordering of the day such as treaty, jurisdiction, ship registration and bounty. In particular, historians of the Mixed Commissions as ICL institutions effect the erasure of ‘race’ from ICL history by translating questions regarding the racial ordering of the Atlantic world into legal questions regarding the reach of abolition in the British parliament and American Congress and the purview of maritime law, the resolution of disputes through application of tribunal procedure and the determining of relevant colonial jurisdiction, the defining of social change through treaties between European states and the constituting of legal institutions. Martinez describes the Mixed Commissions as the institutional form of the first successful human rights movement. The Commissions’ mandate and role, in this narration, are in establishing the rule of law and the rule of humanity; thus the extension of the category human to the illegally enslaved is a gesture of humane and humanitarian recognition. Indeed, she says that it is in the context of the abolition of the slave trade that we hear the first invocation of the notion of a ‘crime against humanity’. Slave traders were violating the law that indicated the illegality of the trade, but the abolition was itself an embryonic articulation of the notion that the victims of these crimes were not just the enslaved but humanity as such. Indeed, to describe the victims as the enslaved is to understate the crime; it is the formulation of the

22  Richard Delgado and Jean Stefancic, ‘Hateful Speech, Loving Communities: Why Our Notion of a Just Balance Changes So Slowly’ (1994) 82 California Law Review 851, 862.

176

176

Racialized Subjects and Deracialized Histories

slave trade as a ‘crime against humanity’ that elevates it to one that violates the very value of humanness.23 Two centuries prior to the abolition of the slave trade, Hugo Grotius published Mare Liberum and made a case for all nations to make free use of the seas. Yet free did not mean uncontested because the term ‘free’ was itself substantiated through different legal regimes delineating legitimate and illegitimate use of the seas. In the mid-​nineteenth century, when cases were brought before the Mixed Commissions, judges investigated the nationality of the flag under which their captors sailed their ships and the location at which their ship was stopped.24 In addition to the corpus of maritime laws regarding matters such as colonization, war, piracy, trade, and the registration of a ship’s nationality, the various treaties regarding abolition also anchored jurisdictional boundaries within the Atlantic Ocean.25 These different legal regimes intersected in different ways; for instance, prize law functioned in tandem with treaties regarding the abolition of the slave trade to further regulate what counted as legitimate and illegitimate capture, and if African men and women on board were freed or shipped back across the Atlantic with their captors. 26 Martinez and other ICL historians describe how each exercise in adjudication regarding jurisdiction assessed the applicability of the law abolishing the trade by focusing on the registration of the ship, the nationality of the ships owner, and the circumstances of capture. The privileges, vulnerabilities, and hierarchies that accompanied racial difference were central to matters such as nationality and ship ownership so race gets constituted in the details of that adjudicatory process without race having to be named. In Martinez’s description too race never gets named although it is present all over her history of ICL; rather, she describes the operation of the Commissions through the ‘colour blind’ legal categories of jurisdiction and prize law that were invoked in decisions. We see in the Mixed Commissions decision-​making process that the privilege of whiteness is precisely the privilege to travel through nationality and property ownership without having to declare its presence; thus decisions were predicated on jurisdiction in ways that preserved that privilege through the natural unfolding of laws regarding nationality and ownership. In contrast, blackness hovered between object and subject, property and persons, past and future, an erased body on the free seas in the age of liberty. Every case that was brought before a commission had immediate monetary implications for the patrolling ship officers, as well for the ship that was captured. There was no question of any recompense for the slaves themselves even when it was slave rebellion that catalysed the bringing of a ship to 23  See David Luban on Crimes Against Humanity as a violation of humanness in his ‘A Theory of Crimes Against Humanity’ (2004) 29(85) Yale Journal of International Law 87. 24  As Lauren Benton has shown this was an era of inter-​imperial struggle for dominance over the oceans and the legal landscape of abolition operated as one terrain on which that struggle was conducted. Lauren Benton, A Search for Sovereignty: Law and Geography in European Empires, 1400–​1900 (Cambridge University Press 2010). 25  Lauren Benton, ‘Abolition and Imperial Law, 1790 to 1820’ (September 2011) 39(3) The Journal of Imperial and Commonwealth History 355–​74. 26 Ibid.

17

Juridification

177

harbour.27 The naval patrols that brought in slave ships became eligible for what was termed salvage or prize money. Maritime law incentivized ships to intervene when ships were in peril (because of storms and other natural causes), but also when they were suspected of illegal activities, including violation of the laws of war and neutrality, piracy, and the slave trade. Thus there were immediate material rewards for the ship captains who pursued slave ships. The Act abolishing the slave trade specified bounties of ‘The Sum of Forty Pounds lawful Money of Great Britain for every Man, or Thirty Pounds of like Money for every Women, or Ten Pounds of like Money for every Child or Person not above Fourteen Years old’.28 If race travelled through jurisdiction and property to shape institutional arrangements, it also travelled through the notion of the individual legal subject in determining the contours of legal recognition of freedom and unfreedom. When a tribunal determined that a black man or woman was a subject warranting freedom, the juridical decision shifted a body from that liminal domain of object and subject, to that of legal personhood. Thus in the description of ICL historians, the legal dilemmas arising from fundamentally racial institutions such as slavery are addressed in terms that make little mention of race. This constitutive erasure of race empowered liberal juridification as a central mechanism forging the expulsion of race and racial consciousness from the heritage of the ‘human’. Indeed racial consciousness is equated with the illiberal and inhumane profiting from racial distinction—​then the slave trader, in contemporary ICL it is the genocidier and the war criminal. In this way, the racial cleansing of that heritage of the human as race neutral rule of law remains forever entangled with law defining and prosecuting the inhuman. Preserving that heritage has entailed shaping its juridical authority and moral compass by condemning the slave trader, The genocidier, the pirate29 -​or expelling as Esmeir describes it: ‘The human is not separate from the inhuman but is produced through law’s expulsion of the inhuman’.30 In the operation of the tribunals, one can track this expulsion in how the crime in ‘the crime against humanity’ gets defined. The law defining the crime was ostensibly race neutral, and mobilized language regarding abstract legal persons, their ownership claims over ships and people, and the nationality under which the ship was registered. These may be the racially differentiated tentacles defining personhood before and beyond the law that help prop up the mythologies of race neutrality internal to the human. Law (from the various pieces of national legislation abolishing the slave trade in Britain, the US, France, and elsewhere), and legal institutions (the Mixed Commissions as well as the national courts which encountered slave trade cases), provided different kinds of cloaks of invisibility for race and it would require

27  Padraic Xavier Scanlon, ‘The Rewards of Their Exertion’ (November 2014) 225(1) Past & Present 113–​42. 28  An Act for the Abolition of the Slave Trade, http://​www.pdavis.nl/​Legis_​06.htm. 29  Or the people trafficker—​see Martinez and Survillo, ‘Like the Pirate and the Slave Trader Before Him’ (n 9). 30  Samera Esmeir, Juridical Humanity (Stanford University Press 2012) 92.

178

178

Racialized Subjects and Deracialized Histories

more detailed investigation of different national contexts to understand the complex and varied racial dynamics of juridification in different jurisdictions. We can track the concrete operation of the process of producing racial invisibility through juridification by looking at how historians describe what happened to ships that were judged to have been in violation of the slave trade through legal investigations into evidence and procedure. Some of the ships brought before the Commission did not have slaves on board, and the Commissioners had to determine if these ships were nevertheless outfitted with the equipment needed to take slaves across the Atlantic. This involved examining the hold for shackles and other indicators that the ship was being prepared for the coerced transfer of hundreds of people across the Atlantic. The majority of ships that came before the Commissions had captured Africans on board and the court had to determine the terms of liability and free the would-​be slaves. The various courts in Sierra Leone heard the most cases—​partly because all the bilateral treaties set up courts in Freetown, and partly because the British navy had been most active in patrolling West African waters in that region. During the course of their existence, the Sierra Leone courts judged that 65,000 captured men and women should be freed because they were being illegally trafficked; the courts in Havana, Rio, and elsewhere released another 15,000 Africans. The men and women who had been captured aboard these ships hailed from across the African continent. It is significant however that the courts ordered their release but imposed no further responsibilities on the slavers to ensure they were able to go home. Thus in the majority of cases, the ‘freed’ found themselves in Freetown, hundreds or thousands of miles from home, in an environment where they did not speak the local language and did not have the resources or geographic knowledge to return to their families. By mid-​century, Freetown had over 40,000 people from across the continent who spoke over a hundred languages.31 Thus we see very concretely the production of ‘freed slaves’ as legal persons without race, history, and social context; their humanity reduced to their legal status and detached from their community. This too is another moment in the construction of race and racial difference in the crucible of defining the ‘crime’ and its consequence. The discussion in this section thus far has highlighted how ICL historians tell the story of the Mixed Commissions in ways that translate the politics of race into technical legal questions regarding nationality and jurisdiction, property and prize law, legal procedure and rules of evidence, legal personhood and juridical freedom. I want to pause now and look at how we may translate these questions back into the politics of race and racialized world orders. For instance, focusing on the work of prize law in shaping tribunal judgment, Lauren Benton argues that this a struggle about the property rights of slave owners and slave traders. In addition, what is at stake is also about property in racial privilege since a claim regarding the ownership or trade in slaves is fundamentally a form of racially contingent property rights.32 Cheryl Harris describes ‘the property interest in Whiteness’ as sustained in important way through systems oriented towards ‘favoring and protecting settled 31  Marcus Rediker, The Amistad Rebellion (Penguin 2012) 44. 32  See Harris, ‘Whiteness as Property’ (n 15) 1707.

179

Juridification

179

expectations of white privilege in “legal disputes” ’. In the legal disputes adjudicated by the mixed tribunals the systems of the property interest in whiteness entails high stakes, including imperial navigation of the high seas for conquest and exploitation of peoples and territories. The restriction on international slave trading is akin perhaps to a restrictive covenant imposed by others who have a property interest in Whiteness, including in other colonial era trading and territorial ambitions. Once a captured ship travels through the adjudicatory process, race gets constituted as background fact rather than the product of legal processes; repressed and buried to present itself only as that which is overcome through judicial recognition of an African’s humanity. Thus this process works like a sieve to produce what Johnson describes as an aspirational humanity that is cleansed of the violence and exploitation that is also integral to the record of humanity. The rule of law is invested with the authority that attaches to a standard-​bearer of this idealized notion of a pure redemptive humanity; this production of legitimacy through juridification is key to how ICL profits from the repression of the traumatic. The maldistribution of the profits of ICL legitimacy can be tracked along Du Bois’s color line, then and now. When the cost of repression is the erasure of race, the overcoming of race to recognize a captured man or woman as human yields the affirmation of white normativity in the very heart of what it means to be human. Or to put it in another way, the erasure of racial world orderings from this story of ‘crimes against humanity’ is the affirmation of white privilege as the historic origins of ICL. The reduction of freedom to juridical freedom entails a troubled and precarious construction of personhood and of freedom. Indeed as Samera Esmeir33 and Saidya Hartman34 have argued in relation to the post-​emancipation moment in America, the juridical construction of human subjectivity is no counter to the dehumanization of slave relations; rather it carries its own oppressive pathologies and justifies its own unfreedoms, but this time internal to the notion of the human. This is one register through which we may echo Hartman’s query—​itself an echo and retranslation of the Touissant query that launched our inquiry—​‘does the extension of humanity to the enslaved ironically reinscribe their subjugated status?’35 By the logic of the ICL origin narrative, freedom cannot be conceived outside of what is legally declared free; captured men and women are abject and dehumanized until the court in its humanist authority recognizes them as free. The structural and systemic dimensions of racial capitalism that shaped vulnerability to slavery gets obscured in a celebration of law as the great emancipator, and concomitantly, the lamenting of lack of access to law as the source of abjection. Arguably, this precarity is part of the memory of racial difference that shapes personhood in front of ICL today where having your case heard in court is often framed as validating your victimhood. The precarity of personhood recognized in every judgment determining that a captured African was person, not property, is underscored when situating the

33 Esmeir, Juridical Humanity (n 30). 35  Ibid. 22.

34 Hartman, Scenes of Subjection (n 10).

180

180

Racialized Subjects and Deracialized Histories

law abolishing the slave trade in the broader political economy of slavery. If juridification entailed a particular kind of translation into abstract personhood, juridification also fed into commodification and the effecting of another kind of translation into columns of profit and loss, the winds of trade and empire. Each adjudication of the legal category (slave or free, property or person) had financial beneficiaries and losers in each individual case, just as the cumulative impact of these juridical processes had macro economic implications for trade and territory in 19th Century world order. Significantly, in the aftermath of the prohibition, the material incentives for the slave trade went both ways. As efforts towards suppression of the trade scaled up, the price of slaves also increased dramatically so there was augmented material incentive to capture and traffic slaves. Thus there was a market logic that drove an intensification in the trade following the prohibition of the slave trade by the US congress and the British parliament; in fact, 25 per cent of slaves trafficked in the transatlantic slave trade were transported in the half century that following the prohibition. Captured Africans seesawed between legal recognition as property and persons, and concomitantly, seesawed in between being valued as cargo and valued as persons—​it all depended on whether the captured man or woman would be successfully trafficked to great profit, or forcibly freed if the ship was hauled into a Mixed Commission. Accordingly, legal abolition played a complex role in the calculation of risk. In this way, the political economy of the traffic in persons cast its shadow in both the revenue column and the loss column of the structural beneficiaries of the slave trade. The recognition of the captured African as a legal person conjoined a certain sort of juridical freedom for the captured, a certain sort of financial bounty for the patrolling officers, and a certain sort of normative legitimacy for the laws and institutions of slave trade abolition. This conjoining of the interests of the dispossessed and the self-​possessed, the victims and the beneficiaries, is an ‘achievement’ of the deracinated definition of law and humanity and an achievement for this ICL enhancing story of origins. Race is rendered invisible even in legal principles (such as abolition) that purport to hold racism to account.

Moralization: Translating Racialized World Order into Race Transcendent Human Rights Article 1 of the Declaration of the Rights of Man famously captured the spirit of the French Revolution thus: ‘Men are born and remain free and equal in rights’. The emancipatory force of this legislation of freedom and equality gets added force against a backdrop of unfreedom and inequality. The Declaration of the Rights of Man was written at a time when France was active in the slave trade and the boundaries of France included colonies such as Haiti where the plantation economy was predicated on slave labour. The race of the men referenced in the Declaration remains unspoken, taken for granted as part of the subtext of ‘Men’. Historians of human rights such as Lynn Hunt argue that, over the course of the seventeenth century, countries of the North Atlantic saw the emergence, and expansion, of the rights

18

Moralization

181

bearing human in social, political, and cultural life.36 In Hunt’s telling of human rights history, the development of empathy across social distinctions was key to this ‘expansion’. In her narrative, even if the birthing of human rights was shaped by the dominant prejudices of the day, the individualist spirit that marks the DNA of the ‘human’ ensures that there is a gradually unfolding sentiment of empathy which then translates into political and legal recognition of human rights claims unencumbered by social distinction. Hunt presents this transcendence of distinctions such as religious and racial difference as immanent to the very logic of human rights. For Voltaire and like protagonists in Hunt’s story, the torture of a Protestant was a violation not of his religion, but of his personhood as a human. The story begin with redeeming the rights of propertied white men, but then cascades across barriers of religion, class, race, and gender. This claim to peeling away context and status was the premise of the liberal revolutions and the rights cascade they inaugurated. The rights cascade mobilized the notion of abstract legal personhood as the juridical implementation of ‘we are born free and equal.37 The abolition of the slave trade is situated in this trajectory as yet another extension of the logic of the rights revolutions of France and America. Historians invested in the heritage of the human for human rights repress the spectacular challenge that slavery poses to the internal coherence of the category ‘human’. Instead they frame that constitutive cleaving as an embarrassing inconsistency that is ironed out over time by the privileged citizens of slave-​holding and empire-​ wielding Europe.38 The gradual abolition of slavery and the end of empire over the course of the two centuries that followed the North Atlantic revolutions are understood by Hunt as carrying the ‘implacable logic’ of the abstract human to its foretold conclusion.39 She situates the Quaker anti-​slave trade initiatives and the British Society for the Abolition of the Slave Trade (founded in 1787) as born from the same seventeenth-​century revolutionary ferment as the American and French revolutions.40 For ICL historians, this logic of inclusion, the assimilation of blacks into the category of human, becomes the central story of the ethical charge of the mixed commissions; thus ICL history is said to be birthed in the crucible of the human rights revolutions, with the Mixed Commissions as the institutional embodiment of the first human rights movement.41 In the preceding section we looked at ICL histories that translated challenging questions of racial world ordering into juridical questions. In this section we look at the function of political moralization (in ICL histories) in assimilating those challenges through a discourse of inclusion, primarily, inclusion into the discursive framework of human rights. Juridification and moralization function symbiotically in ICL history to reinforce the mutually reinforcing work of race neutrality and race transcendence; 36  Lynn Hunt, Inventing Human Rights (Norton 2007). 37  Ibid. 212. 38  They ‘see no good rationale for exclusion’ once they commit to the notion of human rights. Ibid.  16–​17. 39 Ibid. 40  Ibid. 205. 41 For an extended discussion of these movements see Adam Hoschild, Bury the Chains (Manner 2006).

182

182

Racialized Subjects and Deracialized Histories they posit a prior dehumanization that requires the operation of ICL institutions to effect and enable the advance towards the moral-​political horizon of the human. Samera Esmeir nicely captures this symbiosis when she describes how ‘the law must first identify dehumanized subjects to necessitate the resort to its humanizing redemptive power . . . When persons are declared dehumanized, what political possibilities exist for them, aside from being victims awaiting humanitarian intervention?42 The symbiosis of juridification and moralization sets the stage for the grand romance of ‘crimes against humanity’, a conjoining of human rights, humanitarianism, and criminalization that produces the central ICL protagonists: victim, victim’s advocate, and the perpetrator.

ICL historians describe how sentiments of outrage against ‘crimes against humanity’ gained traction in civil society. It is a story that has resonance with contemporary human rights campaigns that mobilized in civil society through public awareness efforts, consumer action and lobbying of politicians; indeed these early eighteenth-​century efforts presage the twenty-​first century of human rights campaigns whose goals were defined through ICL action such as the Save Darfur campaign and the ICC’s indictments against Bashir, or the Kony 2012 campaign and the ICC’s indictments against Joseph Kony. For instance, in his discussion of the slave trade abolition effort in Britain, Adam Hoschild describes how actors like Thomas Clarkson and William Wilberforce worked to inform and engage British public opinion, mobilized a sugar boycott of some 300,000 consumers, and generally pressured the government into taking action. Groups like the Quakers and individuals like Thomas Clarkson, founder of the Anti-​Slavery Society, had led campaigns in the popular press and in various activist gatherings in churches and elsewhere. William Wilberforce introduced several bills calling for the abolition of the slave trade, and ensured the matter was debated in the British parliament. This form of activism was a signal of the new bourgeoisie that has been the subject of diverse scholars of this phase of liberal political engagement in Europe. Key characteristics of this new civil society are worth highlighting, however briefly. For instance, a range of socio-​political, cultural, and economic dynamics converged in ways that contributed to fecund grounds for individuals feeling invested with a sense of moral autonomy, and acting in the world in ways that are articulated through the register of the human.43 Moreover, there was an expanding consumer class with the economic clout to make the consumer boycotts that Martinez describes have weight; thus the bourgeois economic actor also becomes the empowered political actor. Finally, this period saw the emergence of new fora for civil society dialogue and debate in the public sphere, from coffee shops to newspapers.44 The British parliamentary debate regarding the law abolishing the slave trade is striking for its suggestion that everyone (including merchants and plantation owners) had a shared investment in the abolition, and in the terms through which that abolition 42  Samera Esmeir, ‘Making Dehumanization Possible’ (October 2006) 121(5) PMLA: The Journal of the Modern Languages Association 1544–​51, 1547, 1549. 43 Hunt, Inventing Human Rights (n 36). 44  Jürgen Habermas, Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society (MIT 1989). Ben Anderson, Imagined Communities (Verso 1983).

183

Moralization

183

was to be framed and implemented—​namely, the ostensibly race-​transcendent ‘principles of justice, humanity and sound policy’ as per Lord Grenville in the British parliament in 1807.45 Situating ICL’s origins in the ambitions of race transcendence becomes another way of projecting the human subject of ICL history through a founding premise of white normativity. The race politics of the human is invested with contradictory logics—​one of inclusion by analogy, and one of exclusion by definition. If the former anchors the moral clout of the ICL story, the latter carries the subversive threat that needs to be repressed. Thus while the former tells the story as a claim to humanity that trumps over racial distinction, the latter foregrounds racial politics as calling for an interrogation of the human. As we have tried to suggest here, a counter history that highlights the birthing of ‘whiteness’ in the birthing of ‘crimes against humanity’ suggests a co-​dependence between the invention of the human, and the forgetting of race and racial difference from that category. Indeed that very opening Article of the Declaration of the Rights of Man includes a second clause: ‘Social distinctions may be founded only upon the general good.’ The general good is another claimant for what Harris described as ‘the property interest in Whiteness’; it speaks to how the collective aspiration for that general good constitutes the human through that internal racial cleaving. Thus a progress narrative of human rights becomes employed in the repression of the memory of race in the very heart of the human. The veil of ignorance regarding race emerges not as a philosophical heuristic but a socio-​legal construction naturalized in the prevailing mythologies of ICL and its ostensibly race-​transcendent liberal legacies. The Mixed Commissions were celebrated not only for their legal architecture but also as representatives of a moral imperative—​as the institutional achievement of the movement for the abolition of the slave trade that gained traction in Britain in the eighteenth century and achieved increased momentum over the next century. However, in the preceding section we raised questions regarding the precarity of legal personhood, the limits of juridical freedom, and the ICL-​defined ends of the movement for the abolition of the slave trade. There is no more striking demonstration of the pathologies of the moral economies of the Black Atlantic, and the precarity of legal personhood recognized by the abolition, than the fact that the abolition of the international slave trade was intertwined with the sustaining of slavery as such. Thus a central dimension of the backstory to the abolition of the slave trade is that there was a divergence in the political economy of the slave trade, and the political economy of slave holding, and logics of profit and loss to slaver holder and slave owner. For some sectors of the plantation economy in North America, and arguably for their industrial partners in Manchester and elsewhere, addressing their labour needs through the market in slaves who had been already brought to North America (and their progeny) was more profitable than depending on the international trade. Thus many of the advocates of the abolition of the international trade argued for 45  The same terms—​humanity, justice, and sound policy echo through the parliamentary debate—​ for instance, Lord Howick argues in much the same language. http://​hansard.millbanksystems.com/​ commons/​1807/​feb/​10/​slave-​trade-​abolition-​bill.

184

184

Racialized Subjects and Deracialized Histories

it on the theory that it would help ensure that slaves in the national market would be more valuable. There would be added incentive for slave owners to ensure the health and well being of slaves they argued, and this in turn would make slavery a more sustainable social structure. The support for domestic slavery was not uniform but it is significant that when the question of fighting for a more universal emancipation came up in the Society for Effecting the Abolition of the Slave Trade (the organization that led the social movement for the abolition of the trade) only one of the twelve founding members, Granville Sharpe, supported full emancipation.46 In fact, many of the other prominent supporters of the abolition were not opposed to slavery as an institution. William Wilberforce, perhaps the most famous advocate of the abolition of the slave trade, made parliamentary speeches directed at that pro-​slave holding/​anti-​slave trading constituency in making the case for how slave plantations in the West Indies would profit from the abolition of the international trade.47 In sum, the humanitarian imperatives underlying the creation of the Mixed Commissions were conjoined with a complex of other dynamics in defining what was and was not a crime. An equally significant part of the story is that the causes of abolition and imperial consolidation converged. Thus scholars of the legal history of empire have traced how the imperatives for extending and tightening the reach of the British imperial constitution led to a renewed interest in establishing legal authority over the high seas.48 This led to a ramping up of efforts for policing piracy and the slave trade, and the establishing of an enforcement mechanism through the high seas. Intertwined with this were the long reach of the Napoleonic wars, the war of 1812, and a series of other inter-​imperial tensions that made the nationality of the court adjudicating cases a particularly fraught issue. Setting up tribunals through bilateral treaties was one way of negotiating these tensions; an approach of particular value to the British whose imperial star was ascendant but not uncontested. The work of humanitarian discourse in ICL histories entails at least two related dimensions that are warrant probing—​firstly, celebrating the abolition of the slave trade can be a decoy distracting us from the ways in which slavery as such was sustained by international law; secondly, the humanitarianism inflected historical narrative empowers not the agency of the enslaved but the agency of the rescuer. It is significant that the movement for abolition was distinct from freedom struggles by slaves themselves. Thus many abolitionists were keen to distinguish their human rights campaign from movements that challenged the rule of law such as Nat Turner’s rebellion or the underground railroad. For instance, the Haitian revolution was something of an embarrassment for the abolition movement because it conveyed militancy for the overthrow of slavery that was not dependent on developing the moral sympathy of the British and American public. The abolitionist paper The Anti-​Slavery Record seeks to ‘soften the memory of the Haitian Revolution’ through alternative narratives such as a story titled ‘The Humanity of the African Americans’

46 Hoschild, Bury the Chains (n 41) 110. 48 Benton, A Search for Sovereignty (n 24).

47  Ibid. 161.

185

Moralization

185

‘depicting a “loyal” slave who saved his master’s family from retribution’.49 The humanity of the slave had to be proved in this two step dance rejecting slave agency in the struggle for freedom, while making themselves sympathetic characters inviting rescue. Thus here race has to be depoliticized and moralized with racial difference reframed through the dynamics of rescue. The law of salvage referenced in the preceding section spoke to the financial profit that could be claimed by rescuing a ship and its cargo; here we can see a parallel moral salvage that could be claimed by rescuing an enslaved black.50 The moral economies of rescue were pivotal to the legitimacy of the Mixed Commissions and the financial and institutional support that they could command from their sponsoring states, particularly Great Britain. Central to moralization and this redemptive narrative of international law was the abolitionists’ great concern over slave rebellion. The fragile balance of rescue would be achieved only with slaves submitting to rescue rather than preempting it with rebellion. The moral compass of redemption needed the triangle of rescuer, rescued, and a perpetrator. There are two interrelated dimensions of the depoliticizing of race that I want to highlight further. First, the ways in which the movement for abolition get framed as a moral commitment to the human. Secondly, the ways in which prominent instances of African resistance get framed as a threat to that notion of the human. Thus here in the age of liberty there is a splitting of the human between those who have a surfeit of rights, and those who need their rights bestowed from afar. Borrowing from Ranciere one can say that the rights the abolitionists were keen to grant the captured Africans were ‘the rights of those who were unable to enact any rights or even any claim in their name’.51 When discussing juridification we discussed a process for sublimating race talk into law talk to produce the abstract legal human subject of ICL; with moralization, the premise of moral visibility as human is not the re-​channelling of racial categories into juridical categories, but the overcoming of race and racial identity. One is human despite being black—​recall Toussaint’s interrogation of the human ‘we are black, it is true, but...’. With whiteness as the default content of humanity, the moral framing had to be one that reinforced that racial normativity. This was both a process of framing the enslaved as making a plea for recognition that they were human (i.e. just like whites), and embedding that plea in campaigns empowering whites to grant that recognition. It was the imperial benefit of the rights revolutions: ‘you do the same as charitable persons do with their old clothes. You give them to the poor. Those rights that appear to be useless in their place are sent abroad, along with medicine and clothes, to people deprived of medicine, clothes, and rights.’52 The Anti-​slavery Committee chose a seal for its campaign that was designed to underscore that this was a campaign of rescue and beneficence. The seal had an image of a kneeling slave (designed by the pottery magnate Josiah Wedgewood) with 49  Sue Peabody and Keila Grinberg, Slavery, Freedom, and the Law in the Atlantic World A Brief History with Documents (St. Martins 2007) 81. 50  Jacques Ranciere, ‘Who is the Subject of the Rights of Man?’ (Spring/​Summer 2004) 103(2/​3) The South Atlantic Quarterly 297–​310. 51 Ibid. 52 Ibid.

186

186

Racialized Subjects and Deracialized Histories

an emotive caption ‘am I not a man and a brother’; this image and caption became the de facto logo and slogan of the abolitionists.53 The seal invoked the voice of the enslaved man but they were used by white British abolitionists on medallions to be pinned onto garments, embossed into platters they displayed in their homes, etc. Not unlike the Kony 2012 bracelets and the ‘Save Darfur’ pins, the material culture of eighteenth-​century humanitarianism underscores that this was a project where ICL ‘recognition’ was in fact rescue. On the one hand, the kneeling slave in the image was designed with physical features intended to leave the abolitionists in no doubt about his race. On the other hand his supplicant posture and abject plea may have cemented racial definition by inviting the abolitionists to overlook his race in extending recognition, human to human. Thus not unlike wearing a ‘Save Darfur’ button today, to sport that Wedgewood medallion was to display human solidarity, while also inscribing difference as internal to humanitarianism such that one human granted recognition and the other human pleaded for recognition. The human was internally split, carrying with it these contradictions and hierarchies, generosity and exploitation.

The Colour Line in International Criminal Law: ‘And We Are not Saved’ One of the bitter ironies of the Atlantic in the nineteenth century, is that the decades following the liberal rights revolutions was also the period that saw a dramatic escalation of the slave trade.54 It is an irony with historical resonance for liberal legacies propelling ICL today. When inaugurated, the ICC was heralded as the crowning institutional achievement of the global human rights movement; and yet from Syria to Iraq, we have seen a dramatic escalation of the very atrocities that the ICC’s mandate seeks to address. Moreover, perhaps more than any other human rights body, the ICC has been immersed in deep controversy over its docket and the spectres of racism and neo-​colonialism that have accompanied its prosecution record. Written while the ICC’s legitimacy crisis was brewing, Jenny Martinez’s work on the abolition of the slave trade argues that a focus on the longer history of ICL can provide a ‘bridge to the future’ and a more hopeful lesson about the potential of international courts.55 In her telling that is a bridge constructed by judicious institutional purpose in the name of humanity. This chapter has argued that there are racialized girders that hold up this bridge—​girders that are not visible unless we peer under the bridge and dig around the foundations of its institutional legacy.

53 Hoschild, Bury the Chains (n 41) 128. 54  Derrick Bell, And We Are Not Saved: The Elusive Quest for Racial Justice (Basic Books 1987); ‘The harvest is past, the summer is ended, and we are not saved’ Jeremiah 8: 20; King James Bible. 55  The historical links Martinez draws between these commissions and contemporary international criminal law may be tenuous in terms of influence and impact but they are instructive in understanding the back story (in this case the abolition of the slave trade in the name of the ‘human’) that contemporary ICL sees as most relevant to its legitimacy.

187

The Colour Line in International Criminal Law

187

Race and racism have a curiously schizophrenic life in ICL, both ever-​present and elusive. Racialized structures and racialized imaginaries are evident in the substantive and symbolic constructions of criminality and legality, including what is considered a crime and what is not, and what is legitimated as the rule of law and what is not. Racialized patterns ostentatiously map onto prosecutorial priorities—​the patterns of cases that have been brought forward, and those that have been ignored. Familiar racist tropes saturate the affective constructions of guilt and innocence, of monstrous perpetrators and needy victims. On the one hand, the work of the ICC has had a decisively racialized impact in terms of how it has functioned in conjunction with other dimensions of global governance in sustaining a racially mal-​distributive world order. In general, the ICC is part of the dominant human rights and humanitarian apparatus that offers a legitimating gloss to that world order,56 and in particular contexts such as Darfur and Iraq,57 the ICC has a very particular role in putting wind in the sails of that racially mal-​distributive dynamic. Thus W.E.B. Du Bois’s analysis of the ‘outlook for the darker races of mankind’ over a hundred years earlier regarding the persistence of ‘the color line’ continues to have resonance. 58 Yet race is also invisible—​there is no explicit reference to racial categories in the ICC’s official statements; one would be hard pressed to prove racist intent in describing the work of the office of the prosecutorial office; the most prominent officials of the ICC have hailed from ‘the darker nations’. Contemporary criminal law employs abstract legal categories that decisively eschew race. Indeed, the ICC may be said to explicitly invoke race only to prosecute it (as in its Darfur cases). From the perspective of the ICC and its advocates, the heart of ICL history and ICL aspirations rhyme in looking to the work of universal, race transcendent ‘humanity’ as both the engine and beneficiary of ICL. In contrast our own probing of ICL historians’ projection of ICL origin stories and the work they do today, has returned to the ‘colour line’ as a pattern of global governance that is so overwhelming and systematic that we can call it a latent structuring principle of world order. This structure has been the backdrop to the ICC’s work and the redemptive histories of ICL, including ICL’s insistent ‘color blindness’ in engaging with, and inhabiting that world-​order. Amongst some critical commentators, the ICC’s prosecution priorities viz a viz Africa is one symptom of that structure. Here too race is not an explicit dimension of the prosecutorial priorities but is an invisible characteristic of how victims and perpetrators have been defined. Thus while actions that easily fit the Rome 56  As Douzinas argues that ‘institutionalized cosmopolitanism risks becoming the normative gloss of globalized capitalism at its imperial stage’, Costas Douzinas, Human Rights and Empire (Routledge 2007) 176. 57  Mahmud Mamdani, ‘The Politics of Naming: Genocide, Civil War, Insurgency’ (March 2007) 29(5) London Review of Books 8. See also Mahmood Mamdani, ‘Making Sense of Political Violence in Postcolonial Africa’ (2003) 39 Socialist Register 132–​50; Mahmood Mamdani, Political Reform After Genocide in When Victims Become Killers (Princeton University Press 2001). 58  ‘The problem of the twentieth century is the problem of the color line: the relation of the darker to the lighter races of men in Asia and Africa, in America and the islands of the sea’ W.E.B. Du Bois (1900), ‘Lecture at the Third Annual Meeting of the American Negro Academy Titled “The Present Outlook for the Dark Races of Mankind” ’ in Eric Sundquist (ed), The Oxford W.E.B. Du Bois Reader (Oxford University Press 1996) 47.

18

188

Racialized Subjects and Deracialized Histories

Statute’s definition of war crimes have taken place in Afghanistan and Chechnya, Iraq and Gaza, it is the cases in Africa that have preoccupied the ICC’s attention. Like in the context of the nineteenth century, today too race and political economy have conjoined in determining power and privilege. If African perpetrators are the ones who have been charged with crimes against humanity, the ICC is also doing so in the name of African victims, mobilizing a normative economy of supplicants to its institutionalization of humanitarian ‘rescue and beneficence’. Moreover, just as colonial governance extended its reach in contexts such as Sierra Leone in the interstices of British policy prosecuting slave traders, today, in cases such as Libya and Mali, ICC prosecutions of crimes against humanity are adjunct to Security Council members prosecution of bombing campaigns in the name of humanity. Thus claims of a racial and neocolonial subtext to the ICC’s prosecution priorities continues to be a point of discussion amongst critical commentators and the popular press. Using language that carried echoes of an earlier Mixed commissions-​era European fugitive slave law project of ‘slave hunting’ in Africa, Hailemariam Desalegn, former Prime Minister of Ethiopia and then African Union (AU) chairman, accused the ICC for having degenerated into ‘race hunting’.59 Yet such invocations of the ICC’s racist intent or the mens rea of prosecutorial orientation can distract from better understanding the multiple path through which racial regimes work, attidunal and structural, marked and unmarked, more direct and more oblique. In that same passage quoted earlier in this chapter, Freud goes on to say that the patient ‘is obliged to repeat the repressed material as a contemporary experience instead of remembering it as something belonging to the past’.60 We cannot make linear connections between the entanglements of race, humanity and criminal law 200 years ago and race, humanity and criminal law today but looking at contemporary retellings of that past may itself offer symptoms worth probing. Judiciously attending, as Toussaint advises, to the way law works through its silences, these memories of past laws abolishing ‘crimes against humanity’ may tell a story about contemporary dilemmas attending the International Criminal Court.

59  Desalegn’s remarks came at the end of the 2013 African Union (AU) summit with a collective report condemning how the ICC had undertaken its work in Africa. See the Decisions and Declarations emerging from the Extraordinary Session of the Assembly of the African Union, 12 October 2013, Addis Ababa, Ethiopia, 1–​ 2, http://​www.iccnow.org/​documents/​Ext_​Assembly_​AU_​Dec_​Decl_​ 12Oct2013.pdf. This meeting, marked the fiftieth anniversary of the AU (and its predecessor, the OAU) and was particularly significant in assessing the state of the world fifty years after this marker of pan-​ Africanism. The ICC’s overwhelming focus on Africa has been a recurrent theme in subsequent AU meetings with at least three African countries announcing intentions to withdraw (Burundi, Gambia, and South Africa), and official and unofficial claims from others who might follow (including, Chad, the DRC, Kenya, Namibia, and Uganda), with increasing momentum for an AU call for a continent-​ wide withdrawal. 60  James Strachey (1955), The Standard Edition of the Complete Psychological Works of Sigmund Freud, Volume XVIII (1920–​1922): Beyond the Pleasure Principle, Group Psychology and Other Works (The Hogarth Press and the Institute of Psychoanalysis) 1–​283, 18.

189

11 Nazi Atrocities, International Criminal Law, and Soviet War Crimes Trials The Soviet Union and the Global Moment of Post-​Second World War Justice Franziska Exeler

During the Second World War, large parts of Europe, including the western regions of the Soviet Union (today’s Ukraine, Belarus, the Baltic states, and parts of western Russia), were under German and other Axis power rule, while large parts of East and Southeast Asia were under Japanese occupation. As war and occupation came to an end, hundreds of thousands of individuals were prosecuted for their wartime activities in almost all former belligerent countries. The sheer quantity of the trials, their variety, and the legal questions involved were unprecedented; in many respects, they remain unique to this day. This larger, indeed global moment of post-​Second World War justice involved numerous countries on several continents, saw the emergence of international criminal law, and witnessed public and official discourses on collaboration transcend national boundaries. The moment was arguably also a global one because war and occupation had brought about similar challenges and structural conditions in both Europe and Asia. Very different states and societies, ranging from democratic to authoritarian to totalitarian, now found themselves confronted with similar issues, namely how to punish enemy soldiers they deemed responsible for wartime atrocities, and how to punish alleged traitors and collaborators among their own citizens. In response, all of them chose to rely on the same means: the criminal justice system.1 In this chapter, I analyse how the case of the Soviet Union fit into the global moment of post-​Second World War justice, which included not just the 1945–​46 1  In defining what made this moment global, I draw inspiration from: Sebastian Conrad, What is Global History? (Princeton University Press 2016) 64–​72; Erez Manela, The Wilsonian Moment: Self-​ Determination and the International Origins of Anticolonial Nationalism (Oxford University Press 2007) 5–​13, on a particular global moment (the ‘Wilsonian moment’), namely the global circulation of the idea that a just international society based on the principle of self-​determination is possible; Margherita Zanasi, ‘Globalizing Hanjian: The Suzhou Trials and the Post-​World War II Discourse on Collaboration’ (2008) 113 The American Historical Review 731, 731–​4. Nazi Atrocities, International Criminal Law, and Soviet War Crimes Trials: The Soviet Union and the Global Moment of Post-​Second World War Justice. Franziska Exeler. © Franziska Exeler, 2019. Published 2019 by Oxford University Press.

190

190

Soviet War Crimes Trials

International Military Tribunal (IMT) at Nuremberg and the 1946–​48 International Military Tribunal for the Far East at Tokyo (IMTFE), but also hybrid and domestic war crimes trials (mostly Allied prosecutions of Axis soldiers), as well as domestic treason (or collaboration) trials.2 In the last years, a flourishing interest in both the history of international law and Soviet legal history has led to the publication of empirically rich, archive-​based studies, which examine the extent to which the Soviet Union participated in the development of international law.3 Several historians have highlighted the significant practical and conceptual contributions that the Soviet side made to the IMT,4 which, despite many shortcomings, is still widely considered a milestone in the history of international criminal law, international humanitarian law, and human rights.5 Many decades ago, George Ginsburgs, an American legal scholar, first pointed out Moscow’s contributions to the IMT. However, his research, as well as similar arguments made by Natal’ia Lebedeva, then in the Soviet Union, 2  Despite its name and multinational composition (eleven countries provided judges and prosecutors), the IMTFE was strictly speaking not established by international law, given that it was created on order of one country only, the US (via the Supreme Allied Commander for the Far East, General Douglas MacArthur). Rather, it would qualify as a hybrid or internationalized trial. In contrast, the Nuremberg trial was established by a treaty between four countries (France, the UK, the Soviet Union, and the US), which were also the four occupying powers of Germany. Madoka Futamura, War Crimes Tribunals and Transitional Justice. The Tokyo Trial and the Nuremberg Legacy (Routledge 2008) 62–​3. For a discussion of what makes a tribunal international, see also Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford University Press 2011) 104–​6; William Schabas, Unimaginable Atrocities. Justice, Politics, and Rights at the War Crimes Tribunals (Oxford University Press 2012) 17–​20. On hybrid/​internationalized trials: Gerry Simpson, Law, War and Crime. War Crimes Trials and the Reinvention of International Law (Polity Press 2007) 30–​53. 3  Jennifer Amos, ‘Embracing and Contesting. The Soviet Union and the Universal Declaration of Human Rights, 1948–​1958’ in Stefan-​Ludwig Hoffman (ed), Human Rights in the Twentieth Century (Cambridge University Press 2011); Philippa Hetherington, ‘ “The Highest Guardian of the Child”:  International Criminology and the Russian Fight Against Transnational Obscenity, 1885–​ 1935’ (2016) 43 Russian History 275; Anton Weiss-​Wendt, The Soviet Union and the Gutting of the UN Genocide Convention (University of Wisconsin Press 2017); N.S. Lebedeva, V.I. Ishchenko, and I.Iu. Korshunov (eds), Niurnbergskii protsess: uroki istorii. Materialy mezhdunarodnoi nauchnoi konferentsii (Institut vseobshchei istorii RAN 2007). 4  Francine Hirsch, ‘The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order’ (2008) 113 The American Historical Review 701; Francine Hirsch, ‘The Nuremberg Trials as Cold War Competition: The Politics of the Historical Record and the International Stage’ in Marc Silberman and Florence Vatan (eds), Memory and Postwar Memorials. Confronting the Violence of the Past (Palgrave Macmillan 2013); Francine Hirsch, ‘The Soviet Union, the Nuremberg Trials, and the Politics of the Postwar Moment’ in Jens Meierhenrich and Devin O. Pendas (eds), Political Trials in Theory and History (Cambridge University Press 2016); Irina Schulmeister-​André, Internationale Strafgerichtsbarkeit unter sowjetischem Einfluss. Der Beitrag der UdSSR zum Nürnberger Hauptkriegsverbrecherprozess (Duncker & Humblot 2016). On the Soviet Union’s organizational contribution to the IMT: Arieh J. Kochavi, Prelude to Nuremberg. Allied War Crimes Policy and the Question of Punishment (University of North Carolina Press 1998). On the contribution that the Soviet lawyer Aron Trainin made to the charge of crimes against peace: Kirsten Sellars, ‘Crimes Against Peace’ and International Law (Cambridge University Press 2013) 48–​58. 5  The literature on the criticism of the Nuremberg trial is extensive and sophisticated. For a selection of different views and opinions, historical and contemporary: Guénaël Mettraux (ed), Perspectives on the Nuremberg Trial (Oxford University Press 2008). For a fundamental critique, yet ultimately defence of the IMT on the grounds that it was morally and politically justified: Judith N. Shklar, Legalism: Law, Morals, and Political Trials (Harvard University Press, 2nd edn, 1986) 154–​79. For a similar view of Nuremberg as a milestone in the history of humanity: Ruti G. Teitel, Globalizing Transitional Justice: Contemporary Essays (Oxford University Press 2014) 43.

19

Soviet War Crimes Trials

191

were not incorporated into standard western accounts of the history of international criminal law.6 These described its beginnings as one of the rise of liberal humanity, focusing on democratic states and Western scholars, yet overlooking or dismissing the role that a profoundly illiberal regime like Stalin’s Soviet Union had in this process. As Francine Hirsch has recently argued, it was primarily the Cold War—​and the biases that it generated—​that accounted for the unwillingness of Western scholars, whether intentional or unintentional, to acknowledge the constructive contributions that a dictatorship made to the early history of international criminal law.7 This chapter understands itself as part of this scholarly re-​evaluation of the history of international criminal law. At the same time, its focus is broader, as I am interested in the relationship between the international, the national, and the local. The Soviet Union not only participated in the IMT, it also took an active role in the prosecution of war crimes more generally. In absolute numbers, no other country prosecuted as many Axis soldiers for their conduct during the war as the Soviet Union. No other country also put as many of its own nationals for wartime treason on trial as the Soviet Union. In the following, I investigate the nature of these different kinds of criminal prosecutions, and analyse the connection between them, thereby engaging with three strands of scholarship: on the Soviet Union’s contribution to Nuremberg as the first international war crimes trial,8 on Moscow’s prosecution of Axis soldiers (primarily Germans) for what today would be called war crimes,9 and on its treason trials of Soviet citizens alleged of having collaborated with the Germans during the 6 George Ginsburgs, ‘Laws of War and War Crimes on the Russian Front during World War II: The Soviet View’ (1960) 11 Soviet Studies 263; George Ginsburgs, Moscow’s Road to Nuremberg. The Soviet Background to the Trial (Martinus Nijhoff Publishers 1996); Natal’ia S. Lebedeva, Podgotovka Niurnbergskogo protsessa (Nauka 1975). See also the recent important document edition: Natal’ia S. Lebedeva (ed) SSSR i niurnbergskii protsess. Neizvestnye i maloizvestnye stranitsy istorii (Mezhdunarodnyi fond ‘Demokratiia’ 2012). 7  Hirsch, ‘The Soviets at Nuremberg’ (n 4) 710. For a critique of the conventional narrative of ICL’s history also: Immi Tallgren, ‘On Searching for the Historical Origins: A Foreword’ in Morten Bergsmo, CHEAH Wui Ling, and YI Ping (eds), The Historical Origins of International Criminal Law, vol 1 (Torkel Opsahl Academic EPublisher 2014) xvii–​xviii. 8  See the works cited in n 4. 9 Among the most important are:  Aleksandr Epifanov, Otvetstvennost’ za voennye prestupleniia, sovershennye na territorii SSSR v gody Velikoi Otechestvennoi voiny, 1941–​1956 gg. (Volgograd MVD 2005); Andreas Hilger, Deutsche Kriegsgefangene in der Sowjetunion, 1941–​1956: Kriegsgefangenenpolitik, Lageralltag und Erinnerung (Klartext Verlag 2000); Nikita Petrov, ‘Außergerichtliche Repressionen gegen kriegsgefangene Deutsche 1941 bis 1956’ in Klaus-​Dieter Müller, Konstantin Nikischkin, and Günther Wagenlehner (eds), Die Tragödie der Gefangenschaft in Deutschland und in der Sowjetunion 1941–​1956 (Böhlau 1998); Nikita Petrov, ‘Vnesudebnye repressii protiv voennoplennykh nemtsev v 1941–​1946 gg.’ in E.A. Poromonov (ed), Problemy voennogo plena:  istoriia i sovremennost, vol 2 (Izdatel’stvo Vologodskogo instituta povysheniia kvalifikatsii i perepodgotovki pedagogicheskikh kadrov 1997); Nikita Petrov, ‘Deutsche Kriegsgefangene unter der Justiz Stalins. Gerichtsprozesse gegen Kriegsgefangene der deutschen Armee in der UdSSR 1943–​1952’ in Stefan Karner (ed), Gefangen in Rußland (Ludwig-​Boltzmann-​Institut für Kriegsfolgen Graz 1995); Alexander Victor Prusin, ‘ “Fascist Criminals to the Gallows!” The Holocaust and Soviet War Crimes Trials, December 1945–​February 1946’ (2003) 17 Holocaust and Genocide Studies 1; Andreas Hilger, Ute Schmidt, and Günther Wagenlehner (eds), Sowjetische Militärtribunale. Band 1:  Die Verurteilung deutscher Kriegsgefangener 1941–​1953 (Böhlau 2001); Manfred Zeidler, Stalinjustiz contra NS-​Verbrechen. Die Kriegsverbrecherprozesse gegen deutsche Kriegsgefangene in der UdSSR in den Jahren 1943–​1952: Kenntnisstand und Forschungsprobleme (Hannah-​Arendt-​Institut für Totalitarismusforschung  1996).

192

192

Soviet War Crimes Trials

war.10 I examine the extent to which international and domestic justice, and war crimes trials and treason trials were linked, and the ways in which these different-​ level processes intersected and overlapped—​but also when and why they remained separate. In terms of primary sources, the chapter draws on a variety of Soviet state documents such as communist party, secret police, and procuracy reports that were for internal use only, as well as Soviet and Western newspapers, memoirs, and journalistic accounts. This includes a particular set of Soviet secret police documents from the Archive of the Security Service of Ukraine (OGA SBU) that in this form has only recently, and for the first time, become accessible to researchers. Similar documents are probably held in the archives of the Federal Security Service of the Russian Federation (FSB) in Moscow, in the former KGB’s main archives, but they remain classified. The files from the Ukrainian archive not only offer new information on Soviet post-​war trials of Axis soldiers but also provide unique historical material for a discussion of the complicated issue of audience reception. Analysing how the Soviet Union fit into the global moment of post-​Second World War justice shows that for Stalin and his circle of leading Bolsheviks, the International Military Tribunal at Nuremberg, Soviet war crimes trials of Axis soldiers, and treason trials of Soviet citizens were part of the same larger undertaking. From 1943 on, the Soviet government brought more internationally and more domestically oriented forms of prosecution together, most notably at a trial that took place in December that year at Kharkiv. In that, it mirrored strategies that the Soviet government had pursued at a series of high profile trials of alleged political enemies that took place in the 1920s and 1930s. Aimed at multiple audiences within and outside the Soviet Union, at friends and foes alike, the December 1943 Kharkiv trial was supposed to fulfil several foreign and domestic policy objectives at once. To varying degree, this balancing of different, yet interconnected levels likewise became visible in subsequent trials of Axis military personnel and Soviet citizens. In that sense, Soviet treason trials were not domestic issues only, but connected to more 10  Ilya Bourtman, ‘ “Blood for Blood, Death for Death!” The Soviet Military Tribunal in Krasnodar, 1943’ (2008) 22 Holocaust and Genocide Studies 246; Juliette Denis, ‘Identifier les “éléments ennemis” en Lettonie. Une priorité dans le processus de resoviétisation (1942–​1945)’ (2008) 49 Cahiers du monde russe 297; Epifanov, Otvetstvennost’ za voennye prestupleniia (n 9); Franziska Exeler, ‘The Ambivalent State. Determining Guilt in the Post-​World War II Soviet Union’ (2016) 75 Slavic Review 606; Franziska Exeler, ‘Reckoning with Occupation: Soviet Power, Local Communities, and the Ghosts of Wartime Behavior in Post-​1944 Belorussia’ (PhD thesis, Princeton University 2013); Jeffrey Jones, ‘ “Every Family has its Freak”. Perceptions of Collaboration in Occupied Soviet Russia, 1943–​1948’ (2005) 64 Slavic Review 747; Claire P. Kaiser, ‘Betraying their Motherland: Soviet Military Tribunals of Izmenniki Rodiny in Kazakhstan and Uzbekistan, 1941–​1953’ (2014) 41 The Soviet and Post-​Soviet Review 57; Sergey Kudryashov and Vanessa Voisin, ‘The Early Stages of Legal Purges in Soviet Russia (1941–​1945)’ (2008) 49 Cahiers du monde russe 263; Oleksandr Melnyk, ‘Stalinist Justice as a Site of Memory: Anti-​ Jewish Violence in Kyiv’s Podil District in September 1941 through the Prism of Soviet Investigative Documents’ (2013) 61 Jahrbücher für Geschichte Osteuropas 223; Olaf Mertelsmann and Aigi Rahi-​ Tamm, ‘Cleansing and Compromise: The Estonian SSR in 1944–​1945’ (2008) 49 Cahiers du monde russe 319; Tanja Penter, ‘Local Collaborators on Trial. Soviet War Crimes Trials under Stalin (1943–​ 1953)’ (2008) 49 Cahiers du monde russe 341; Vanessa Voisin, L’URSS contre ses traîtres. L’Épuration soviétique (1941–​1955) (Publications de la Sorbonne 2015); Amir Weiner, Making Sense of War: The Second World War and the Fate of the Bolshevik Revolution (Princeton University Press 2001) 129–​90.

193

Soviet War Crimes Trials

193

internationally oriented war crimes trials through official discourse, and in some cases even through legal text. Throughout the immediate post-​war years, the Soviet government continued to tailor these trials according to its political needs—​yet all the while, they also revealed the regime’s anxieties. In the eyes of Stalin and his inner circle, then, domestic and international justice, and for that matter politics, were closely linked. Of course, as Judith Shklar has famously argued, even in liberal states, law is never above politics.11 Moreover, as Gerry Simpson has noted, the politics of war crimes trials are usually plural and contested, and their legalism variegated.12 Given their complex nature, it therefore seems most appropriate to conceive of the trials that took place in response to the Second World War as located along a spectrum marked by two poles: On the left, the ideal-​type liberal trial, impartial and solely based on the rule of law; on the right, the classical show trial: politics unconstrained by judicial process, a scripted trial with fabricated allegations and pre-​determined outcomes (historically represented by the 1936–​38 Moscow trials of prominent communists, which fulfilled these criteria).13 Depending on the degree to which a trial complied with standards of rule of law, each trial that took place in response to the violence of the Second World War could then be placed along that spectrum. Doing so would demonstrate that the Western Allies’ war crimes trials in both Europe and Asia often did not live up to the liberal legal standards that these countries sought to achieve at home. A mix of procedural shortcomings, including looser rules of evidence or denying suspects and defendants the same rights that Western Allied country nationals were granted in domestic courts, usually accounted for that.14 In Asia, the European colonial empires also 11 Shklar, Legalism (n 5) 111. However, Shklar did not argue that all justice was political. Rather, she drew a distinction between ordinary (criminal) justice and political justice, the latter of which is aimed at the elimination of the political enemy through use of the courtroom. Shklar shares this understanding of political justice with Otto Kirchheimer; both in turn were influenced by Carl Schmitt. Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (Princeton University Press 1961) 6, 49–​50. In their thorough discussion of what constitutes a political trial, Jens Meierhenrich and Devin O. Pendas have recently made a similar argument, upholding the distinction between ordinary trials and political trials. For them, a political trial is one that aims at the distribution of power, involves political disputes of some social significance, or is both reflective and constitutive of power relations in a given polity. Moreover, political trials are compatible with liberal legalism (understood by them as adhering to due process). Show trials, the prime example of didactic trials, form a subset of political trials. Jens Meierhenrich and Devin O. Pendas, ‘ “The Justice of My Cause is Clear, but There’s Politics to Fear”: Political Trials in Theory and History’ in Meierhenrich and Pendas, Political Trials (n 4), 15, 21,  48–​9. 12 For a discussion of the relationship between law and politics, focused on the international sphere: Simpson, Law, War and Crime (n 2) 11–​29, in particular 13. 13  On the Moscow show trials: Wladislaw Hedeler, Chronik der Moskauer Schauprozesse 1936, 1937 und 1938. Planung, Inszenierung und Wirkung (Akademie Verlag 2003); William Chase, ‘Stalin as Producer. The Moscow Show Trials and the Construction of Mortal Threats’ in Sarah Davies and James Harris (eds), Stalin: A New History (Cambridge University Press 2005) 229–​30. On the 1920s evolution of Soviet show trials, which served as a model to the Moscow trials: Julie A. Cassiday, ‘Marble Colums and Jupiter Lights: Theatrical and Cinematic Modeling of Soviet Show Trials in the 1920s’ (1998) 42 The Slavic and East European Journal 640. 14  On procedural shortcomings of different Western Allies’ trials in both Europe and Asia: Hilary Earl, The Nuremberg SS-​Einsatzgruppen Trial, 1945–​1958. Atrocity, Law and History (Cambridge University Press 2009) 297–​301; Yuma Totani, Justice in Asia and the Pacific Region, 1945–​1952: Allied War Crimes Prosecution (Cambridge University Press 2015) 12–​20. The American judges at the Mauthausen trial

194

194

Soviet War Crimes Trials

often used trials of Japanese military personnel as a means to reassert their authority in colonies that had been under Japanese rule during the war.15 Clearly located to the right of the spectrum were Moscow’s trials of both Axis soldiers and Soviet citizens. Even though the Soviet government, through its participation in the IMT, made productive contributions to the idea that individuals have to be held accountable for wartime atrocities, this did not lead to fairer trials in the domestic setting. The Soviet legal system continued to lack fundamental standards of liberal, rule of law-​based legal systems such as an independent judiciary, independent defence lawyers, and the assumption of ‘innocent until proven guilty’ that form the precondition for any trial to be considered as impartial as possible. In consequence, neither Soviet war crimes trials nor treason trials fulfilled the criteria necessary to establish beyond doubt an individual’s criminal responsibility. What had changed as a result of the war, though, was the Soviet Union’s influence: an isolated country before the war, the alliance with major Western countries and ultimately the victory over Nazi Germany opened up new possibilities for the Bolsheviks to use law not just on the national, but also on the international stage. Still, Soviet war crimes trials (but less so the treason trials) differed from Soviet pre-​war justice in one crucial respect, and that was the difference between fabricated or imagined versus actual and visible acts. The acts that the defendants were accused of at the 1930s trials, for example industrial sabotage or plotting against the Soviet government, had as a whole not taken place. In contrast, the acts that the defendants at the Soviet war crimes trials were accused of—​such as the killing of captive Red Army soldiers, Jews, or other civilians, rounding up people for forced labour in Germany, or participating in punitive raids that saw entire villages razed to the ground—​had of course been committed. The Soviet prosecution thus had no difficulty in presenting evidence of atrocities committed by the Germans and their allies, although this did not necessarily entail that the prosecutors could provide material that testified to the defendants’ personal participation in these acts. It was the existence of atrocities on such a tremendous scale, combined with the extent to which almost everyone in occupied territory had personally suffered under German occupation, that affected public perceptions of Soviet justice. As the example of the Soviet Union therefore indicates, within the global moment of post-​Second World War justice, the acts that had been committed could legitimize a significant lack of rule of law. They also, however, distinguished Soviet war crimes trials (although less

spent on average four hours to consider a defendant’s case before handing down dozens of death sentences. Prior to the trial, some investigators applied dubious interrogation techniques bordering on torture. Tomaz Jardim, The Mauthausen Trial. American Military Justice in Germany (Harvard University Press 2012) 6, 202–​6, 213. 15  This included the 1945–​46 British trial of members of the Indian National Army, who had fought alongside the Japanese against the British on the Burmese front. The defendants were charged not with having committed war crimes but with murder and treason, in other words: betrayal of the very same country that had colonized India. Their prosecution sparked much public outrage in India, with protest against it forming part of the larger anti-​colonial struggle. Konrad M. Lawson, ‘Wartime Atrocities and the Politics of Treason in the Ruins of the Japanese Empire, 1937–​1953’ (PhD thesis, Harvard University 2012) 46–​94, 148–​64.

195

Revolutionizing International Law

195

so the treason trials) from Soviet pre-​war trials—​and in that sense accounted for differences within illiberal justice.

Revolutionizing International Law On 8 August 1945, the US, the UK, France, and the Soviet Union signed the London Agreement, and in doing so revolutionized international law. The agreement contained a charter in the annex (the Charter of the International Military Tribunal, also called the London Charter or Nuremberg Charter), which created the legal foundation for the prosecution of twenty-​four Nazi leaders at Nuremberg from November 1945 to October 1946.16 Two aspects in particular were novel about the charter. First, it defined certain acts as crimes and divided these into three categories: crimes against peace, war crimes, and crimes against humanity. ‘Crimes against peace’ meant the waging of a war of aggression, ‘war crimes’ encompassed violations of the laws and customs of war in occupied territory (such as the murder, mistreatment, and deportation to slave labour of prisoners of war or civilians), and ‘crimes against humanity’ the murder or mistreatment of any civilian population, including one’s own nationals, before or during war. Second, the charter determined that an individual who had committed one or more of these acts could now be held criminally responsible on the international and not just on the domestic level, as it had until then been the case.17 Apart from taking part in preparing and organizing the Nuremberg trial, the Soviet side also made conceptual contributions to the legal framework of the International Military Tribunal, most notably the charge of crimes against peace. The idea that aggression should be criminalized had its origins in the aftermath of the First World War; in the following years, it continued to be widely debated by legal scholars and politicians in Europe and the US.18 Soviet scholars were at first not part of the discussion; after all, they had broken with the notion of universal international law, declaring it an instrument of European imperialism.19 As geopolitical concerns over 16  For a detailed analysis of the complex political developments, negotiations and compromises that led to the London Agreement: Kochavi, Prelude to Nuremberg (n 4) in particular 221–​30 on the summer 1944 negotiations in London, and Sellars, Crimes Against Peace (n 4) 47–​112. 17  It also announced that an international military tribunal should be created, which had jurisdiction over the three crimes as laid out in the charter, but was limited to acts committed by the European Axis countries. This ensured that atrocities committed by Allied forces in Europe would not be tried. See the text: ‘Charter of the International Military Tribunal, London, 8 August 1945’, reprinted in: John C. Watkins Jr. and John Paul Weber (eds), War Crimes and War Crime Trials: From Leipzig to the ICC and Beyond: Cases, Materials and Comments (Carolina Academic Press 2006) 98–​103. 18 Sellars, Crimes against Peace (n 4) 1–​46; Daniel Marc Segesser, Recht statt Rache oder Rache durch Recht? Die Ahndung von Kriegsverbrechen in der internationalen wissenschaftlichen Debatte 1872–​1945 (Schöningh 2010) 76–​302. 19  Lauri Mälksoo, ‘The History of International Legal Theory in Russia: A Civilizational Dialogue with Europe’ (2008) 19 European Journal of International Law 211, 226. In doing so, Soviet lawyers also broke with pre-​revolutionary Russian scholarship, which had made significant contributions to the development of international law. This included the Martens Clause in the 1899 Hague Convention II on the laws and customs of war on land, named after the Russian lawyer Fëdor Fëdorovich Martens.

196

196

Soviet War Crimes Trials

the rise of Nazi Germany and Imperial Japan grew, however, the Soviet government changed course. In the mid-​1930s, a Soviet doctrine of international criminal law emerged. This development was the result of a fundamental and permanent reorientation of the Soviet legal system. Beginning in the early 1930s, the government moved away from the idea that law would become superfluous under communism, and came to see a stable, disciplined, and professionalized legal system (and law more generally) as a means to increase the Soviet party-​state’s capacity, to centralize power, and to enhance the reputation of the Soviet Union at home and abroad. The key figure in this process was Andrei Vyshinskii, an old Bolshevik and lawyer who held the post of Prosecutor General of the Soviet Union from 1935 to 1939. Infamous for his role as main prosecutor at the 1936–​38 Moscow trials, Vyshinskii was the Soviet Union’s chief legal ideologue under Stalin.20 He was also the one to instruct the lawyer Aron Trainin to develop a Soviet doctrine of international criminal law.21 In his writings, Trainin engaged with Western scholarship, above all with Vespasian Pella who argued that heads of states and others who initiated war should be held criminally responsible.22 In July 1944, Trainin’s major work on The Criminal Responsibility of the Hitlerites (Ugolovnaia otvetstvennost’ gitlerovtsev) was published in Russian. In the book, he argued that ‘crimes of the Hitlerites against peace’ (prestupleniia gitlerovtsev protiv mira) and ‘crimes of the Hitlerites, connected with the war’ (prestupleniia gitlerovtsev, sviazannye s voinoi) constituted international crimes for which the German leaders bore individual criminal responsibility.23 According to him, aggression did not, however, constitute a crime in cases of just war or wars of liberation. As Moscow claimed that its 1939 attack on Poland constituted a war of liberation, it could therefore, in Trainin’s reasoning, conveniently argue that it had not committed a crime against peace.24 At the time of the publication of the Russian version of The Criminal Responsibility of the Hitlerites, the main Allies were still engaged in discussions and negotiations over how to try Nazi leaders. Keen to advance Trainin’s ideas, the Soviet government had his book translated into English and distributed among its Western Allies.25 Scholars disagree, though, over the question of Trainin’s proper place in the history 20  On this shift: Harold J. Berman, Justice in the U.S.S.R. An Interpretation of Soviet Law (Harvard University Press 1963) 52–​64; Robert Sharlet, ‘Stalinism and Soviet Legal Culture’ in Robert Tucker (ed), Stalinism: Essays in Historical Interpretation (Norton 1977); Eugene Huskey, ‘Vyshinskii, Krylenko, and the Shaping of the Soviet Legal Order’ (1987) 46 Slavic Review 414; Peter Solomon, Soviet Criminal Justice under Stalin (Cambridge University Press 1996) 153–​4. 21  Hirsch, ‘The Soviets at Nuremberg’ (n 4) 703–​6. 22  See in particular his first major work on ‘The Defence of Peace and Criminal Law’: Aron Trainin, Zashita mira i ugolovnyi zakon (Iuridicheskoe izdatel’stvo NKIU Soiuza SSR 1937) 91–​122, 165–​72. On Trainin’s central role: Ginsburgs, Moscow’s Road to Nuremberg (n 6) 77–​85; Schulmeister-​André, Internationale Strafgerichtsbarkeit (n 4) 42–​7, 63–​5. On Pella’s relevance for the history of international criminal law: Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–​1950 (Oxford University Press 2014) 103–​7. 23  Aron N. Trainin, Ugolovnaia otvetstvennost’ gitlerovtsev (Iuridicheskoe izdatel’stvo NKIU SSSR 1944) 41–​4, 70–​8. Translated as Aron N. Trainin, Hitlerite Responsibility under Criminal Law (trans. Andrew Rothstein, Hutchinson & Co 1944). 24 Trainin, Ugolovnaia otvetstvennost’ (n 23) 36. 25  Hirsch, ‘The Soviets at Nuremberg’ (n 4) 707–​9.

197

Soviet War Crimes Trials

197

of international criminal law. Kirsten Sellars has argued that his work intersected with, possibly also influenced similar ideas proposed around that time by Western lawyers, most notably within the United Nations War Crimes Commission. ‘Crimes against peace’ was thus not the legal innovation of one scholar or one national government, but rather developed in an intermittent international dialogue, which involved lawyers in the US, Britain, and the Soviet Union, as well as those attached to the European governments-​in-​exile.26 In contrast, Francine Hirsch has argued that it was Trainin who gave the concept its definitive formulation, which would later serve as a basis for the London Charter.27 George Ginsburgs and Irina Schulmeister-​ André have advanced similar arguments.28 What is undisputed, though, is that Trainin’s ideas on crimes against peace were received favourably by the American, British and French delegates at the 26 June–​8 August 1945 London conference, where Trainin was present as part of the Soviet delegation. During the discussion, individual delegates, for example Lord Chancellor William Jowitt or Robert H. Jackson, cited or referenced Trainin’s publications, thereby acknowledging his intellectual contribution to the development of the London Charter and thus international criminal law more generally.29

Soviet War Crimes Trials The Soviet role in the history of war crimes trials, however, was not limited to Nuremberg. While Moscow’s involvement at the International Military Tribunal for the Far East that took place at Tokyo from April 1946 to November 1948 was minimal, largely due to the powerful position of the US in East Asia, it took a much more active role in the prosecution of Axis military personnel suspected of wartime atrocities.30 In the aftermath of the Second World War, such trials were conducted by almost every Allied country. In most cases, the defendants were German or Japanese military personnel ranging from rank-​and-​file soldier to general, although some were also civilians accused of having committed war crimes.31 In Asia, the prosecution of Japanese military personnel was carried out by colonial empires reasserting their authority: France, the UK, the US, the Netherlands, and Australia. Chinese and Philippine tribunals were among the few non-​Western Allied prosecutions of Japanese soldiers. From 1945 to 1951/​52, the Allies conducted about 2,244 military 26 Sellars, Crimes against Peace (n 4) 49–​83, in particular 50. 27  Hirsch, ‘The Soviets at Nuremberg’ (n 4) 707. 28 Ginsburgs, Moscow’s Road to Nuremberg (n 6)  79, Schulmeister-​ André, Internationale Strafgerichtsbarkeit (n 4) 65–​71. 29 Ginsburgs, Moscow’s Road to Nuremberg (n 6) 92–​3; Hirsch, ‘The Soviets at Nuremberg’ (n 4) 708; Schulmeister-​André, Internationale Strafgerichtsbarkeit (n 4) 243, 245–​6. 30  Yuma Totani, The Tokyo War Crimes Trial. The Pursuit of Justice in the Wake of World War II (Harvard University Press 2008) 1, 7–​12, 28–​9. 31  For a list of select military trials that the Allies conducted individually in Europe and Asia, see the fifteen volumes edited by the United Nations War Crimes Commission: Law Reports of Trials of War Criminals: Selected and Prepared by the United Nations War Crimes Commission (Published for the United Nations War Crimes Commission by His Majesty’s Stationery Office 1947–​49).

198

198

Soviet War Crimes Trials

trials in Asia that involved roughly 5,700 defendants, of whom 984 individuals were executed and another 3,419 sentenced to prison terms. About 18 per cent of the defendants were acquitted.32 In Europe, the prosecution of Axis soldiers was focused on Germany and, to a lesser extent, on Austria. While it is unknown how many German and Austrian nationals were overall tried, at least 3,338 of them, including civilians, were convicted before French, American, and British military courts in their respective occupation zones.33 Examples include the US army trials at Dachau from June 1945 to December 1947 or the Ravensbrück trials that the British military conducted from December 1946 to July 1948.34 Nominally, these trials were non-​international, given that they fell under the authority or jurisdiction of one state only. However, the different laws, decrees, and regulations that the military tribunals applied were either directly modelled on the London Charter or else drew on its new legal categories. British military courts, for example, prosecuted both German and Japanese soldiers under a June 1945 Royal Warrant that was based on the London Charter. The October 1945 Australian War Crimes Act that provided the legal foundation to Australian military trials of Japanese soldiers, in turn, was closely modelled on the British Royal Warrant.35 It was this movement of newly created international law and its interaction with domestic law that accounted for Nuremberg’s immediate global impact—​although this occurred, of course, by way of non-​international military tribunals operating in colonial and occupation settings. From a formal perspective, the Soviet Union was not part of this transnational diffusion of legal norms. Neither did Moscow base its prosecution of Axis soldiers on the London Charter nor did it incorporate Nuremberg’s legal categories into its penal code. Moreover, in contrast to the US, France, and the UK that held some military trials in their respective German occupation zones under Control Council Law No 10, the Soviet Union refrained from doing so—​even though this law, which was based on the London Charter, had been jointly adopted by the four main Allies with the aim to streamline their individual prosecutions in Germany.36 For Stalin and 32  1,018 individuals were acquitted. Barak Kushner, Men to Devils, Devils to Men: Japanese War Crimes and Chinese Justice (Harvard University Press 2015) 8–​9; Totani, Justice in Asia (n 14) 9. On the Western Allies’ war crimes prosecution in Asia also: Philip R. Piccigallo, The Japanese on Trial: Allied War Crimes Operations in the East, 1945–​1951 (University of Texas Press 1979). 33  Norbert Frei, ‘Nach der Tat. Die Ahndung deutscher Kriegs-​und NS-​Verbrechen in Europe—​ eine Bilanz’ in Norbert Frei (ed), Transnationale Vergangenheitspolitik. Der Umgang mit deutschen Kriegsverbrechern in Europa nach dem Zweiten Weltkrieg (Wallstein 2006) 31–​2; Devin O. Pendas, ‘Seeking Justice, Finding Law: Nazi Trials in Postwar Europe’ (2009) 81 The Journal of Modern History 347, 354. 34  Lisa Yavnai, ‘U.S. Army War Crimes Trials in Germany, 1945–​1947’ in Patricia Heberer and Jürgen Matthäus (eds) Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes (University of Nebraska Press 2008); Ulf Schmidt, ‘ “The Scars of Ravensbrück”: Medical Experiments and British War Crimes Policy, 1945–​1950’ in Heberer and Matthäus, Atrocities on Trial (n 34). 35  A.P.V. Rogers, ‘War Crimes Trials under the Royal Warrant: British Practice 1945–​1949’ (1990) 39 International and Comparative Law Quarterly 780, 786–​7; Narrelle Morris, ‘Justice for “Asian” Victims: The Australian War Crimes Trials of the Japanese, 1945–​51’ in Kevin Jon Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press 2013). 36  At the only public post-​war trial of German nationals that a Soviet military court conducted in its occupation zone, the language of Nuremberg was clearly invoked: the defendants, former personnel of the Sachsenhausen concentration camp, were accused of having committed war crimes, crimes against

19

Soviet War Crimes Trials

199

his inner circle, drawing on the London Charter probably would have amounted to an encroachment on Soviet sovereignty.37 Even if the Allies were jointly revolutionizing international law, Soviet ideology nevertheless deemed ‘socialist law’ superior to ‘bourgeois law’.38 Another reason might have been that Moscow simply did not see any necessity to do so. After all, in April 1943, more than two years prior to the creation of the London Charter, the Soviet government had issued its own special decree that would provide the legal foundation for the prosecution of wartime atrocities. The Soviet Union was also first among the Allies to begin trying Axis military personnel. A closer look at their trials shows how already during the war, the Soviet government brought more internationally and more domestically oriented forms of prosecution together. Within the first months after the German attack on the Soviet Union on 22 June 1941, the Soviet government issued a series of public statements and notes to its allies in which it declared its intention to hold the Germans accountable for atrocities committed against prisoners of war and civilians in the occupied Soviet regions. Particularly significant was a note from 14 October 1942, in which Viacheslav Molotov, People’s Commissar for Foreign Affairs and one of the men in Stalin’s inner circle, went a major step beyond all previous proposals, Soviet and Western alike. He declared that Moscow considered it absolutely necessary to conduct a ‘special international tribunal’ that would try the leaders of Nazi Germany.39 On 19 April 1943, the Soviet government issued a decree that, applied by domestic military courts, provided the foundation for the Soviet prosecution of German and other Axis military personnel below the top leadership level.40 This decree did not establish a legal definition of war crimes, given that it did not use the word ‘war crime’ (voennoe prestuplenie) as such. Instead, it spoke of ‘atrocities’ (zverstva), ‘violence’ peace, and crimes against humanity. Still, the actual conviction occurred under the Soviet penal code. Jonathan Friedman, ‘The Sachenhausen Trials: War Crimes Prosecution in the Soviet Occupation Zone and in West and East Germany’ in Atrocities on Trial, 159–​84, here 162–​4. In contrast, the US held twelve additional military tribunals of high-​ranking Nazis at Nuremberg between 1946 and 1949 under Control Council Law No 10. Heller, The Nuremberg Military Tribunals (n 2) 107–​38. At the same time, the majority of American military trials were not conducted under Control Council No 10. At the Mauthausen trial, one of the Dachau trials, the chief prosecutor drew on precedents from American military law and definitions of war crimes codified in the Geneva and Hague conventions instead of making use of the novel legal categories created at Nuremberg. Jardim, The Mauthausen Trial (n 14) 212. 37  This was at least the reason why in the immediate post-​war years the Soviet Union repeatedly objected to the creation of a permanent criminal court. Anton Weiss-​Wendt, ‘The Soviet Union and the Genocide Convention:  An Exercise in Cold War Politics’ in Agnieszka Bieńczyk-​Missala and Sławomir Dębski (eds), Rafał Lemkin: A Hero of Humankind (Polski Instytut Spraw Międzynarodowych 2010) 187. 38 Andrei Vyshinskii, Sovetskii sud i sotsialisticheskoe pravosudie (Gosudarstvennoe izdatel’stvo politicheskoi literatury 1938) 7, 9, 28. 39  Quoted from source No 4: ‘Zaiavlenie sovetskogo pravitel’stva ob otvetstvennosti gitlerovskikh zakhvatchikov i ikh soobshchnikov . . .’ 14 October 1942, in SSSR i niurnbergskii protsess (n 6) 78. Also Ginsburgs, ‘Laws of War’ (n 6) 257–​61. 40 On the April 1943 decree see Epifanov, Otvetstvennost’ (n 9)  17–​ 37; Hilger, Petrov and Wagenlehner, ‘Der “Ukaz 43” ’ (n 9); Kudryashov and Voisin, ‘The Early Stages’ (n 10) 290–​2; Zeidler, Stalinjustiz (n 9) 16–​8. Alexander Prusin has suggested that the Soviet decree was issued in response to a similar decree that the Polish government-​in-​exile issued on 30 March 1943. Alexander Prusin, ‘The “Second Wave” of Soviet Justice: The 1960s War Crimes Trials’ in Norman J.W. Goda (ed), Rethinking Holocaust Justice: Essays across Disciplines (Berghahn 2018) 150.

20

200

Soviet War Crimes Trials

(nasilie), or ‘massacres’ (raspravy), of ‘having tortured, strung up, shot and burned alive’ captured Red Army soldiers and civilians in occupied territory.41 Its tone was more emotional than the decrees that the Western Allies issued in 1945 (like the aforementioned British Royal Warrant or the Australian War Crimes Act). Yet the idea behind it—​that certain acts by individual Axis soldiers as described in the decree constituted crimes that demanded punishment—​was also central to the later London Charter. Although the decree’s text remained unpublished, its application soon became known within and outside the Soviet Union. With the November 1943 Moscow Declaration, the Soviet Union, the UK, and the US had agreed that the prosecution of Axis military personnel as well as Nazi party members would only take place after the war, in the localities where they had committed crimes. However, shortly after the Moscow Declaration (and for reasons that are not clear), the Soviet government decided to take steps, immediately and single-​handedly.42 In late November 1943, Stalin ordered that a public military trial be conducted in the Soviet Ukrainian city Kharkiv.43 From 15 to 18 December 1943, three Germans, selected to present an assortment of military ranks and branches of the German armed forces, stood on trial in one of the city’s main theatres, as seen in the picture below. Charged under the April 1943 decree, they were sentenced to death. On 19 December 1943, witnessed by more than 40,000 locals, members of the Red Army as well as Soviet and foreign journalists, they were hanged on Kharkiv’s main square.44 At the trial, the Soviet prosecution assigned individual culpability to the three Germans, who were accused of the murder and mistreatment of Soviet civilians. These, as the prosecution argued, were not isolated acts, but part of ‘Hitler’s plan to annihilate the Slavic nations’ that the SS and police units had carried out in Kharkiv region on order of the German government and the High Command of the Wehrmacht.45 (In doing so, the prosecution not only downplayed the disproportionate high number of Jews among civilian victims, it also distorted the historical record by presenting the Nazis’ plan to murder the entire Jewish population as a plan to murder the entire Slavic population.)46 In other words, the Nazi system as 41  Quoted from the decree: ‘Protokol No. 40 zasedaniia Politbiuro TsK VKP(b)’ 19 April 1943, Russian State Archive of Socio-​ Political History (Rossiiskii gosudarstvennii arkhiv sotsial’no–​ politicheskoi istorii, hereafter RGASPI) f. 17, op. 3, d. 1047, ll. 34, 232–​3. 42 Ginsburgs, Moscow’s Road to Nuremberg (n 6) 52. 43  The Russian name of the city is Kharkov. For the text of the 26 November 1943 resolution: ‘Protokol No. 42 zasedaniia Politbiuro TsK VKP(b)’ 26 November 1943, RGASPI f. 17, op. 163, d. 1385, l. 83. 44  Pravda (Moscow 20 December 1943) 4. 45  Sudebnyi protsess o zverstvakh nemetsko-​fashistskikh zakhvatchikov na territorii gor. Khar’kova i Khar’kovskoi oblasti v period ikh vremennoi okkupatsii (Gospolitizdat 1943) 5–​6, quote 6. This is an edited, published report on the trial proceedings. The complete, uncensored transcripts of the trial are probably held in the Russian FSB archives; however, they are not accessible to researchers. 46  Press coverage of the trial usually universalized the victims, calling them Soviet citizens. If some articles on the Kharkiv trial mentioned Jews explicitly, then only alongside other Slavic victims, and while underplaying the disproportionate high number of Jewish civilian victims. Jeremy Hicks, ‘ “Soul Destroyers:” Soviet Reporting of Nazi Genocide and its Perpetrators at the Krasnodar and Khar’kov Trials’ (2013) 98 History 530, 543–​5. During the war, the Soviet media often attempted to conceal the Nazis’ systematic murder of Jews. At the same time, an official policy to omit the murder of Jews

201

Soviet War Crimes Trials

201

Figure 11.1  View of the courtroom, Kharkiv, December 1943. The judges are seated in the middle of the stage, the defendants are seated below, to the right of the audience. Courtesy of the Russian State Documentary Film & Photo Archive

such bore responsibility for the acts that the three defendants were accused of. That is also how the trial’s significance was portrayed in the Soviet press: In the words of the writer Ilya Ehrenburg, ‘convicted were not just three insignificant beasts of prey, but Fascist Germany in its entirety’.47 On Stalin’s order, the proceedings, the indictment, and the verdict were published widely in the Soviet press. Pravda, the main central Soviet newspaper, described the trial as being of ‘great international significance’, proving that ‘a blatant breach of international legal norms will not go unpunished’. It also warned that ‘the ring-​leaders of the accursed Fascist band will pay with their heads for all their crimes against mankind’.48 To ensure maximum attendance, the audience was kept rotating from session to session, with tickets distributed to local workers through trade union organizations. In addition, numerous Soviet journalists and foreign correspondents were present.49 from the Soviet media did not exist. Rather, it was a tendency that never became entirely consistent, as several newspapers did indeed publish explicit reports at different points in time. Karel Berkhoff, ‘Total Annihilation of the Jewish Population: The Holocaust in the Soviet Media, 1941–​45’ (2009) 10 Kritika: Explorations in Russian and Eurasian History 61. 47 Quoted from:  Il’ia Erenburg, Voina (aprel’ 1943–​mart 1944) (Gosudarstvennoe izdatel’stvo khudozhestvennoi literatury 1944)  162. The article was first published in Krasnaia Zvezda on 18 December 1943. 48  ‘Nemetsko-​fashistskie zlodei pered sudom sovetskogo naroda’ Pravda (Moscow 16 December 1943) 2. Pravda covered the trial extensively in No 308–​312 (16–​20 December 1943), as did the other central Soviet newspapers Krasnaia Zvezda, Izvestiia, and Komsomol’skaia Pravda. The trial was also covered in main and regional newspapers of the individual Soviet republics, eg in the main Ukrainian newspaper Sovetskaia Ukraina in No 226–​229 (16–​19 December 1943). 49  Besides Ilya Ehrenburg, this included Aleksei Tolstoi and Konstantin Simonov. For Simonov’s recollections of the trial:  Konstantin Simonov, Raznye dni voiny. Dnevnik pisatelia:  1942–​1945

20

202

Soviet War Crimes Trials

For the latter, the Soviet government also organized visits to recently liberated cities, with the aim of presenting first-​hand evidence for the mass murder of Soviet civilians.50 Shortly after the trial’s conclusion, the government issued a small booklet on the proceedings in Russian. German and English translations were published in early to mid-​1944.51 At the trial, cameramen had filmed every minute of the proceedings and also recorded the execution. Immediately thereafter, footage of it was shown throughout the Soviet Union.52 The government also had an English-​ language film on the trial produced (titled Atrocities and We Accuse), which was shown at the Tatler Theatre in London in July 1944 and at Little Carnegie Hall in New York in May 1945.53 With the trial, it seems, the Soviet government pursued several foreign policy objectives at once. Given the effort that Moscow put into ensuring that the trial would reach an international audience, it is plausible that Stalin thought of it as an experiment to see how the Western Allies would respond to Moscow’s version of a war crimes trial.54 The trial was also directly aimed at Nazi Germany, making clear that German soldiers in Soviet captivity would have to fear prosecution. In response, Hitler gave orders to conduct a similar trial in Germany. According to a statement released by the German Foreign Office, Berlin considered the American and British

gody (Grifon M 2005), 290–​4. Among the foreign journalists was the American Edmund Stevens, whose account of the trial was published in:  Edmund Stevens, Russia is No Riddle (Greenberg Publishers 1945) 110–​17. The New York Times and The Times covered the trial in several articles: W.H. Lawrence, ‘Kharkov Slayers Tried by Russia’ The New  York Times (New  York 17 December 1943) 1, 8; ‘War News Summarized’ The New York Times (New York 18 December 1943) 1; ‘War News Summarized’ The New York Times (New York 19 December 1943) 1; ‘Russians Send Four to Gallows for Mass Murders Near Kharkov’ The New York Times (New York 19 December 1943) 1, 32; Edwin L. James, ‘Red Propaganda Coup Seen in Atrocity Trial’ The New York Times (New York 19 December 1943) E 3; ‘German Atrocities in Russia—​Gestapo Men on Trial at Kharkov’ The Times (London 17 December 1943), 4; ‘Hitler’s Guilt in War Atrocities—​Admissions at Kharkov’ The Times (London 18 December 1943) 3; ‘Death Sentences at Kharkov—​Four Prisoners Hanged’ The Times (London 20 December 1943) 4; ‘Kharkov Delivered’ The Times (London 31 December 1943) 5. 50  On organized excursions for journalists through Kharkiv and meetings with eyewitnesses and survivors of German atrocities: W.H. Lawrence, ‘Kharkov Prepares for Repair Task’ The New York Times (New York 23 December 1943) 2. 51  Sudebnyi protsess o zverstvakh nemetsko-​fashistskikh zakhvatchikov na territorii gor. Khar’kova (n 45). The German translation was published as: Gerichtsprozeß über die Bestialitäten der faschistischen deutschen Okkupanten in Stadt und Gebiet Charkow während ihrer vorübergehenden Besetzung (Verlag für fremdsprachige Literatur 1944). The English translation was published as: ‘The Trial of the Case of the Atrocities Committed by the German Fascist Invaders in Kharkov and Kharkov Region’ in The People’s Verdict: A Full Report of the Proceedings at the Krasnodar and Kharkov German Atrocity Trials (Hutchinson 1944). 52 Stevens, Russia is No Riddle (n 49) 117. 53  However, the US Production Code Administration decided to withhold the film from general release because it used the word ‘damn’ and included images of atrocities as well as of the ‘prolonged hanging of war criminals’. Janina Struk, Photographing the Holocaust: Interpretations of the Evidence (I.B. Tauris 2004) 138–​9, quote 139. In July 1944, Life magazine published images from the film, which included photographs of the public hangings. 54  As also suggested by:  Stevens, Russia is No Riddle (n 49)  116, Ginsburgs, Moscow’s Road to Nuremberg (n 6)  55. For Natal’ia Lebedeva, Kharkiv increased the pressure on the Soviet Union’s Western Allies and set ‘a legal precedent for the punishment of Nazi war criminals’. Quoted from Lebedeva, Podgotovka (n 6) 30.

203

Soviet War Crimes Trials

203

governments complicit in the Kharkiv trial, and threatened to prosecute American and British soldiers in German captivity.55 Beyond retribution, the Kharkiv trial was also linked to what could be called the Soviet-​Nazi propaganda war over each country’s human rights abuses and atrocities. For that, it is important to know that in early 1943, about one and a half years after the Wehrmacht had brought Smolensk region in northwestern Russia under its control, the Germans discovered mass graves in the forest of Katyn, not far from Smolensk. These were the remains of more than 4,000 Polish officers, killed by the Soviet secret police in the spring of 1940.56 Hoping to bring about a split between the Polish government-​in-​exile and the Soviet Union, and to drive a wedge between the Allies, Berlin began to broadcast its discovery in mid-​April 1943. World media immediately picked up the news, and when the Polish government rejected Stalin’s request to blame the murder on the Germans, Moscow broke off relations. During the summer of 1943, members of the Polish Red Cross conducted exhumations at the site; their findings pointed conclusively to Soviet guilt. Once the Red Army had reconquered Smolensk in the fall of 1943, Stalin responded by assigning the Soviet Extraordinary State Commission (Chrezvychainaia gosudarstvennaia komissiia, ChGK) to the case, whose responsibility it was to investigate Nazi war crimes.57 Around that time, as internal correspondence between Stalin and the Soviet secret police reveals, Moscow began to make plans for a public trial of German prisoners of war: the future Kharkiv trial.58 Originally, it was devised to be about German war crimes not just in Kharkiv but also in Smolensk region. In late November, however, Stalin changed his mind, and Katyn was dropped from the trial, perhaps because the Extraordinary State Commission had not yet provided enough ‘evidence’.59 By the time of the IMT, however, it had fabricated the necessary material—​which the Soviet prosecution at Nuremberg then used, although rather unsuccessfully, to assign culpability for the Katyn killings to the Germans.60 Apart from the international, the trial also had a deep domestic dimension. Moscow not only demonstrated that Germans would not go unpunished, it also

55  ‘Nazis Threaten Reprisal Trials on American and British Fliers’ The New York Times (New York 23 December 1943) 3. Also: Gerd R. Ueberschär, ‘Anmerkungen zur Reaktion der deutschen Führung auf die sowjetischen Kriegsverbrecherprozesse’ in Müller, Nikischkin, and Wagenlehner Die Tragödie der Gefangenschaft in Deutschland und in der Sowjetunion (n 9) 221–​3. The plan was not realized. 56  The Soviet secret police murdered an additional 10,000 Polish officers at different localities in Russia, Ukraine, and Belorussia. Anna M. Cienciala, Natalia S. Lebedeva, and Wojciech Materski (eds), Katyn: A Crime Without Punishment (Yale University Press 2007) 1–​2; R.G. Pikhoia, A. Geishtor, et al. (eds), Katyn’: Plenniki neob’iavlennoi voiny. Dokumenty i materialy (Mezhdunarodnyi fond ‘Demokratiia’ 1997)  16–​36. 57  Katyn: A Crime Without Punishment (n 56) 215–​29. On the ChGK: Marina Sorokina, ‘People and Procedures:  Toward a History of the Investigation of Nazi Crimes in the USSR’ (2005) 6 Kritika: Explorations in Russian and Eurasian History 797, 804–​5. 58  Petrov, ‘Deutsche Kriegsgefangene’ (n 9) 186. 59  The Politburo discussed the trial at its 26 November 1943 session. Stalin personally crossed out the words ‘Smolensk’ from the directive. RGASPI f. 17, op. 163, d. 1385, l. 83. On the incomplete fabrication of material: Petrov, ‘Deutsche Kriegsgefangene’ (n 9) 189–​90. 60  Cienciala, Lebedeva, and Materski, Katyn (n 56) 229–​35; Hirsch, ‘The Soviets at Nuremberg’ (n 4) 724–​6.

204

204

Soviet War Crimes Trials

demonstrated that Soviet citizens would not escape punishment. At the trial, a Soviet citizen who had worked as a driver for the Kharkiv SS stood next to the three Germans, and like them was sentenced to death.61 That the punishment of Soviet citizens was just as important as the punishment of Germans can also be deduced from the aforementioned April 1943 decree. In addition to being devised for the ‘punishment of the German-​Fascist invaders’, it was directed ‘at the spies and traitors of the motherland among Soviet citizens, and at their accomplices’.62 Moreover, while the Kharkiv trial had been the first public trial of German military personnel, it had not been the first trial of a Soviet citizen accused of wartime wrongdoings in the name of German power. The first (known) large, public, and much publicized trial had taken place from 14 to 17 July 1943 in Krasnodar, in southwestern Russia. The defendants were eleven Soviet citizens, of whom all but one had worked for the SS.63 Comparing the July 1943 Krasnodar trial of Soviet citizens to the December 1943 Kharkiv trial of three Germans and one Soviet citizen, we can see that although the defendants at Krasnodar were charged for treason under the Soviet Russian penal code (and not under the 1943 April decree, as the Soviet citizen at Kharkiv), the Kharkiv trial otherwise closely followed the Krasnodar model. The prosecution, even if not as articulated as at Kharkiv, invoked the complicity charge by referring to the rulers of Nazi Germany and their ‘associates’ as the instigators of the crimes that the Soviet citizens on trial were accused of. Of the eleven defendants at the Krasnodar trial, three received forced labour camp sentences, and eight were sentenced to death. As at the Kharkiv trial, their execution was a public spectacle: On 18 July 1943, they were hanged on Krasnodar’s main square. More than 30,000 locals, as Pravda reported, witnessed the execution.64 Like the Kharkiv trial, the Krasnodar trial was attended by a large audience, which consisted of local inhabitants as well as Soviet journalists. Foreign journalists, though, were not present, suggesting that Moscow envisioned the primary audience of the trial to be domestic. The proceedings at Krasnodar were also covered widely in various Soviet media outlets, including print, radio, and film, if perhaps a bit less extensively than the Kharkiv trial.65 Two articles appeared on 16 and 17 July 1943 61  Sudebnyi protsess o zverstvakh nemetsko-​fashistskikh zakhvatchikov na territorii gor. Khar’kova (n 45) 3, 95. 62  Quoted from the decree: RGASPI f. 17, op. 3, d. 1047, l. 232. When the Soviet leadership was considering several versions of this text during the preparation of the decree, Stalin made sure to clarify that ‘spies and traitors’ referred explicitly to Soviet citizens. Hilger, Petrov and Wagenlehner, Der ‘Ukaz 43’ (n 9) 184–​5. 63  For a detailed analysis of the Krasnodar trial: Bourtman, ‘Blood for Blood, Death for Death!’ (n 10) 246–​65. Another trial of Soviet citizens took place around the same time in Krasnodon (eastern Ukraine). Hardly any source material is available on this trial, yet it probably mirrored the trial at Krasnodar. 64 ‘Sudebnyi protsess’ Pravda (Moscow 19 July 1943), 3; ‘Prigovor nad izmennikami Rodiny priveden v ispolnenie’ Pravda (Moscow 19 July 1943) 3; ‘Pravosudie svershilos’!’ Pravda (Moscow 19 July 1943) 3. 65  Pravda covered the trial in issues Nos 175–​180 (14–​19 July 1943). Krasnaia Zvezda, Izvestiia, and Komsomol’skaia Pravda likewise covered the trial, as did newspapers of the individual Soviet republics and regional newspapers. For a more detailed analysis of the press coverage also Bourtman, ‘Blood for

205

On Different Ways of Being Public

205

Figure 11.2  Public execution of Soviet citizens, 18 July 1943, after the 14–​17 July 1943 trial at Krasnodar, Russia. Courtesy of the Russian State Documentary Film & Photo Archive

in the weekly English-​language newspaper Soviet War News, which was issued by the Soviet embassy in London, while an English translation of the proceedings was published shortly thereafter, followed by its German version in 1944.66 This balancing of different, yet interconnected levels likewise became visible in subsequent trials of Axis military personnel and Soviet citizens. Throughout the post-​war years, the Soviet government continued to tailor these trials according to its political needs. At the same time, the trials differed in terms of their public nature—​and, as the following section will discuss, thereby revealed the regime’s anxieties.

On Different Ways of Being Public The Soviet Union’s prosecution of enemy soldiers began in 1943, reached its peak in the late 1940s, and was concluded in 1956, when the last prisoners of war, including the convicted, were repatriated to their respective countries. During that time, Soviet military tribunals (either within the Red Army or, more commonly, Blood, Death for Death!’ (n 10) 250, 256–​8. For a comparison with the Kharkiv trial: Hicks, ‘ “Soul Destroyers’ (n 46) 538–​9. 66  ‘Trial of the Traitors’ Soviet War News (London 16 July 1943); ‘Krasnodar Trial’ Soviet War News (London 17 July 1943). Soviet War News (at various points also called Soviet Weekly or Soviet News) was published from 1942 to 1991. Based on the Pravda articles, the proceedings were published in English as: The Trial in the Case of the Atrocities Committed by the German Fascist Invaders and Their Accomplices in Krasnodar and Krasnodar Territory, 14–​17 July 1943 (Foreign Languages Publishing House 1943), and in German as: Prozeß in der Strafsache gegen die faschistischen deutschen Okkupanten und ihre Helfershelfer wegen ihrer Bestialitäten im Gebiet der Stadt Krassnodar und des Krassnodarer Gaus während der zeitweiligen Besetzung dieses Gebietes. Verhandelt am 14.–​17. Juli 1943 (Verlag für fremdsprachige Literatur 1943).

206

206

Soviet War Crimes Trials

within the Soviet secret police) tried about 34,000 members of the German military, usually under the April 1943 decree.67 With the exception of a few dozen at best, all were convicted, and most of them condemned to forced labour.68 2,883 members of the Japanese military were also prosecuted, as were probably a few hundred, maybe thousands of other European Axis soldiers (Romanians, Hungarians, Austrians, and others).69 At the same time, the Soviet government tried even more of its own nationals for their wartime conduct than Axis soldiers. This phenomenon was not unique to the Soviet Union. In the part of post-​war China that was under control of the Nationalist Party, for example, over 30,000 individuals accused of having collaborated with the Japanese were charged with treason in 1945–​47. Approximately 15,000 of them were convicted; for many, the sentence was death. In contrast, and for a variety of reasons, including the civil war between Chinese communists and nationalists, the Chinese Nationalist Party only brought 883 soldiers of the Japanese army to court, of whom 355 men were found guilty.70 Among the European countries that had been under German rule or had German puppet states led by local fascists or conservatives installed on their territory, the number of people who were prosecuted by their own governments varied significantly. Norwegian courts, for example, tried 3 per cent of the country’s population for collaboration with the Germans, about four times more than Belgium and six times more than France. The picture changes, though, if we factor in conviction and acquittal rates as well as type and length of sentence. In Belgium, 60 per cent of all defendants received prison sentences, whereas in Norway, only about 18 per cent did.71 France sentenced ten 67  Andreas Hilger, Ute Schmidt, and Günther Wagenlehner, ‘Einleitung’ in Hilger, Schmidt, and Wagenlehner, Sowjetische Militärtribunale. Band 1 (n 9) 11–​16; Hilger, Deutsche Kriegsgefangene in der Sowjetunion (n 9) 314–​31, 353–​67. This does not include the unknown number of imprisoned German soldiers that the secret police (NKVD and NKGB) executed during the war without trial. Petrov, ‘Vnesudebnye repressii’ (n 9) 77–​94. 68  Twenty-​eight cases are known in which German soldiers were prosecuted, but not convicted. Of the convicted, an estimated one to three percent received the death sentence. Hilger, Schmidt, and Wagenlehner, ‘Einleitung’ (n 67) 13, 19. 69  This amounted to about 1.5–​2 per cent of all German military personnel in Soviet captivity. During the Second World War, the Red Army took about 5 million prisoners. Germans constituted the largest group of prisoners (1.7–​2 million), followed by (in descending order): Japanese (about 610,000), Hungarians, Rumanians, Austrians, Poles, Czechoslovaks, Italians, French, and others. M.M. Zagorul’ko, S.G. Sidorov, and T.V. Tsarevskaia (eds), Voennoplennye v SSSR 1939–​1956: Dokumenty i materialy (Logos 2000) 12, 330–​3 (source No 3.92: ‘Spravka T.F. Filippova o chislennosti repatriirovannykh umershikh i nakhodiashchikhsia v plenu v SSSR nemtsev po sostoianiiu na 1 ianvaria 1949 g.’, and source No 3.93: ‘Spravka GUPVI NKVD SSSR o voennoplennykh byvshikh evropeiskikh i iaponskikh armii po sostoianiiu na 1 ianvaria 1949g.’). On Japanese soldiers: V.A. Gavrilov and E.L. Katasonova (eds), Iaponskie voennoplennye v SSSR: 1945–​1956 (Mezhdunarodnyi fond ‘Demokratiia’ 2013) 17, 1387. The number of prosecuted non-​German European Axis soldiers is my own estimate. 70 Kushner, Men to Devils, Devils to Men (n 32)  9; Barak Kushner, ‘Pawns of Empire:  Postwar Taiwan, Japan, and the Dilemma of War Crimes’ (2010) 30 Japanese Studies 111, 119. Statistics vary in the literature. Dongyoun Hwang speaks of ‘more than 25,000’ cases. Dongyoun Hwang, ‘Wartime Collaboration in Question: An Examination of the Postwar Trials of the Chinese Collaborators’ (2005) 6 Inter-​Asia Cultural Studies 75. It is unknown how many people were tried by the Chinese communists (either Chinese nationals for treason or soldiers of the Japanese army for war crimes). 71  This refers to each country’s population size in 1945. Norwegian courts tried 92,805 people out of a population of 3 million for collaboration with the Germans. Belgium tried 57,245 people out of a population of 8.3 million, and France 128,520 people out of a population of 42 million. Tony Judt,

207

On Different Ways of Being Public

207

times more defendants to death than Czech courts, but only carried out about one-​ tenth of the sentences. Czech courts, on the other hand, carried out almost all death sentences.72 In absolute numbers, no country that had been occupied during the war prosecuted as many of its own nationals for treason (that is, for collaborating with the Germans) as the Soviet Union. Conviction rates, it seems, were also higher than elsewhere, and the Soviet judiciary overwhelmingly upheld these convictions, which further distinguished the Soviet case from most countries.73 As soon as the Red Army reconquered a region, the secret police quickly set out to investigate what Soviet citizens had done under Nazi rule. In consequence, prosecution peaked in 1943 and 1944, when the Red Army made its biggest advances, and in the first year after Nazi occupation, 1945. Nevertheless, the number of arrests remained high until 1952, after which it dropped significantly. From 1943 until the death of Stalin in 1953, 260,000 Soviet citizens were prosecuted for ‘treason and helping the German occupiers’ (predatel’stvo i posobnichestvo nemetskim okkupantam) and another 358,000 for ‘treason’ (izmena rodine, literally ‘betrayal of the motherland’).74 It is unclear, though, how many of those prosecuted for treason were soldiers or civilians, just as it is unclear whether all of those arrested for treason were accused of having helped the Germans. Individuals charged with treason (including those accused of ‘treason and helping the German occupiers’) were usually prosecuted under Article 58 of the Soviet Russian penal code, the article for so-​called counterrevolutionary crimes, but at times also under the April 1943 decree.75 Compared to Axis soldiers, Soviet Postwar: A History of Europe since 1945 (Penguin 2005) 45–​50; Martin Conway, ‘Justice in Postwar Belgium: Popular Responses and Political Realities’ in István Deak, Jan T. Gross, and Tony Judt (eds), The Politics of Retribution in Europe. World War II and Its Aftermath (Princeton University Press 2000) 134; Luc Huyse, ‘The Criminal Justice System as a Political Actor in Regime Transitions: The Case of Belgium, 1944–​50’ in Deak, Gross, and Judt, The Politics of Retribution (n 71) 161; Benjamin Frommer, National Cleansing. Retribution against Nazi Collaborators in Postwar Czechoslovakia (Cambridge University Press 2005) 2–​3, 321. 72  French courts sentenced 7,037 people to death, but only carried out 791 executions. In contrast, Czech courts, which tried more than 168,000 people of whom about 69,000 were convicted, handed out 723 death sentences, but of these, 686 executions, about 95 per cent, were carried out. Frommer, National Cleansing (n 71) 90–​1. 73  This is based on my analysis of the statistics (by year) provided in: Oleg Mozokhin, Pravo na repressii. Vnesudebnye polnomochiia organov gosudarstvennoi bezopasnosti. Statisticheskie svedeniia o deiatel’nosti VChK–​OGPU–​NKVD–​MGB SSSR (1918–​1953) (Izdatel’stvo ‘Kuchkovo pole’ 2006) 481–​626. 74  It is also unknown how many Soviet citizens were arrested specifically for ‘treason and helping the German occupiers’ prior to 1943, but given that the Red Army began to reconquer parts of Soviet territory in late 1941, the overall number of prosecuted was probably higher by a few thousand, perhaps even a few tens of thousands. There are no statistics available from 1954 on. Mozokhin, Pravo na repressii (n 73) 481–​626. 75  Article 58 covered all aspects of what Soviet law called ‘counterrevolutionary crimes’, that is, acts ‘directed toward the overthrow, subversion, or weakening’ of the Soviet party-​state, which included treason, izmena rodine. Regardless of whether someone was prosecuted for ‘treason and helping the German occupiers’ or only for ‘treason’, he or she would formally have been charged with izmena rodine. It was defined as ‘acts done by citizens of the USSR in damage to the military power of the USSR, its national sovereignty, or the inviolability of its territory’ and tried under Articles 58-​1a (for civilians) and 58-​1b (for soldiers) if the military court applied the penal code of Soviet Russia. The article number varied if the penal codes of other Soviet republics were applied, but the texts were identical. Quoted

208

208

Soviet War Crimes Trials

Figure 11.3  Trial of the village head Bazylevii, village of Usviate, Smolensk region, probably fall 1943. Courtesy of the Belarusian State Archives of Films, Photographs and Sound Recording

citizens were more likely to be sentenced to death and executed, although the majority received forced labour camp sentences up to twenty-​five years.76 Given that a statute of limitation did not exist for treason, the Soviet state tried people for their wartime activities all the way into the late 1980s, until the dissolution of the Soviet Union.77 As the war was still being fought, the punishment of Soviet citizens in newly reconquered regions was frequently, and deliberately so, conducted in front of local audiences, in the locality where a person had, for example, acted as village elder or policeman during Nazi rule. These early prosecutions were usually quick, improvised, and conducted by field courts under the open sky. One such trial is shown in the picture above, taken in the village of Usviate in Smolensk region (northwestern Russia), which the Soviet forces reconquered in the summer and fall of 1943. On trial was a man by the name of Bazylevii, who during the German occupation had served as the head (starosta) of Usviate village. He is standing in the centre-​right of the photo, in front of what looks like a jury of three officers, surrounded by at least four armed guards, other soldiers and what probably were his fellow villagers, most of them women.

from: A. Trainin et al (eds), Ugolovnyi kodeks RSFSR: Kommentarii (Iuridicheskoe izdatel’stvo NKIU SSSR 1944) 64. 76 Mozokhin, Pravo na repressii (n 73) 481–​626. Punishment was most severe from late 1941 to 1943, and the death sentence quite common. Beginning in 1944, however, Soviet policy changed; from now on, labour camp sentences were about nine times more common than the death sentence. Exeler, ‘The Ambivalent State’ (n 10) 216–​8. The death sentence was suspended from mid-​1947 to early 1950, which distorts the picture somewhat. In February 1950, it was reinstated for those deemed traitors, spies, and saboteurs. Harold J. Berman and Miroslav Kerner, Soviet Military Law and Administration (Harvard University Press 1955), 89–​90. 77  Penter, ‘Local Collaborators’ (n 10) 342; Prusin, ‘The “Second Wave” of Soviet Justice’ (n 40).

209

On Different Ways of Being Public

209

The picture clearly speaks to the makeshift format of these early trials, borne out of the counter-​offensive’s specific circumstances. If trials were conducted by Red Army military courts, they were often held within a few hours, and the verdict carried out shortly thereafter.78 Such trials probably took place in every district throughout the formerly German-​occupied territories.79 They were in accordance with the April 1943 decree, in which the Politburo had ordered that executions should take place in public, and that the gallows should be left standing for a few days so that ‘all understand what punishment means and what kind of retribution awaits everybody who commits violence and massacres against the civilian population and who betrays his motherland’.80 Once the war ended, Moscow saw less need to use public executions of alleged traitors as a means to reassert state authority in reconquered territory. From then on, the prosecution of Soviet citizens for treason was not only much more formalized, it was also overwhelmingly carried out in secret, as was the prosecution of Axis military personnel.81 At politically expedient moments, however, the Soviet government decided to open some trials to the public: in the case of Axis soldiers, a total of eighteen trials, and an unknown, but certainly much higher number in the case of Soviet citizens. From December 1945 to early February 1946, as the IMT was still being held at Nuremberg, eight public trials of German military personnel took place in Soviet cities that had been under Nazi rule or siege during the war: Leningrad, Smolensk, Briansk, Velikie Luki, Kiev, Mykolaiv, Minsk, and Riga. Most of the defendants received the death sentence and were executed in public; the rest were sentenced to twenty-​five years in the Gulag.82 Next came a series of nine trials that took place from late October to December 1947, again in Soviet cities that had been occupied during the war: Stalino (today Donetsk), Bobruisk, Sevastopol, Chernihiv, Poltava, Chişinău, Novgorod, Gomel’, and Vitebsk. The defendants were German,

78  For the 1943 or 1944 trial of a village head in Belorussia who was tried by the military tribunal of the Red Army’s fiftieth army, see the memoirs by the military prosecutor Valiev: A. Kh. Valiev, Zapiski voennogo prokurora (Velikaia Otechestvennaia voina 1941–​1945 gg.) (Matbugar Iorty 2000) 123–​4. In October 1943, the military court of the Red Army 397th rifle division conducted an open trial in the village Kliapino, Gomel’ region (southeastern Belorussia). Four local policemen were sentenced to death by hanging. See the secret police report in ‘Spetssoobshcheniia NKGB i NKVD’, 3 July 1943–​24 November 1943, National Archive of the Republic of Belarus (National’nyi arkhiv Respubliki Belarus’, hereafter NARB) f. 4p, op. 33a, d. 400, ll. 376–​84. 79  In the case of Axis soldiers, evidence is more fragmentary. Public hangings of Axis soldiers, perhaps even without trial, are known from Ukraine, namely in Mariupol in September 1943 and Kiev in November that year. It is unclear, however, how widespread such cases were. On Mariupol: Petrov, ‘Deutsche Kriegsgefangene’ (n 9) 185; on Kiev as witnessed by or told to: Stevens, Russia Is No Riddle (n 49) 110. 80  Quoted from the decree: RGASPI f. 17, op. 3, d. 1047, l. 233. 81  For detailed analyses of Moscow’s treatment of Soviet citizens deemed traitors and German accomplices see the literature in n 10. 82  In Russian, Mykolaiv is called Nikolaev. See the reports on the eight trials that Nikolai Rychkov, Minister of Justice, Sergei Kruglov, Minister of Internal Affairs, and Viktor Abakumov, Minister of State Security, sent to the Politburo members Viacheslav Molotov, Lavrentii Beriia, and Georgii Malenkov in: ‘Zapiski Molotova . . . o provedenii v Khabarovske otkrytogo sudebnogo protsessa . . . o provedenii sudebnykh protessov nad voennosluzhashchimi byvshei germanskoi armii . . . ’ 29 December 1945–​10 February 1950, RGASPI f. 82, op. 2, d. 894, ll. 1–​29.

210

210

Soviet War Crimes Trials

Austrian, Hungarian, and Romanian nationals.83 The 1947 trials differed from the 1945/​46 trials in one respect: With the Cold War developing, the international reference point of the October–​December 1947 Soviet war crimes trials was no longer the IMT, but the October 1947 trial of Sachsenhausen concentration camp personnel that the Soviet authorities had conducted in Berlin.84 Otherwise, however, all of them closely followed the December 1943 Kharkiv model: they were widely reported in the central, republican, and regional press, and local audiences were allowed to attend. The series of public trials of enemy soldiers was concluded in December 1949 with a trial of Japanese military personnel at Khabarovsk in the Russian Far East. Moscow, it seems, conducted it for two main reasons: to establish good relations with the new People’s Republic of China, and to counter the growing influence of the US in the Far East during the early days of the Cold War.85 The prosecution was not only covered widely in the central Soviet press, the Soviet government also tried to spread information about the Khabarovsk trial through both diplomatic and media channels, which included foreign-​language publications on the proceedings.86 As the 1947 trials and again the 1949 trial took place during the temporary suspension of the death sentence, all defendants received forced labour camp sentences.87 Like the December 1943 trial at Kharkiv, the post-​war domestic war crimes trials of Axis soldiers thus always carried an international dimension. At the same time, there also existed a connection to the treason (or collaboration) trials. The public military trial that took place from 18 to 23 February 1946 at Mar’ina-​Gorka, a small town located in Pukhovichi district, just south of Minsk in Soviet Belorussia, shows 83 Zeidler, Stalinjustiz contra NS-​Verbrechen (n 9) 32. On the Novgorod trial: Dmitrii Astashkin, ‘Otkrytyi sudebnyi protsess nad natsistskimi voennymi prestupnikami v Novgorode (1947 god)’ Novgorodskii istoricheskii sbornik (Sankt-​Peterburgskii institut istorii RAN 2014) 352. 84  In Russian, Chişinău is called Kishinëv. See Rychkov, Konstantin Gorshenin (Procurator General of the USSR), and Kruglov’s November 1947 report to Molotov on the nine trials: RGASPI f. 82, op. 2, d. 894, ll. 38–​41. 85  The Soviets had collected material for the trial since 1946. It aimed to rectify one of the shortcomings of the IMTFE, namely the politically motivated omission of medical-​related crimes committed by the Japanese army unit 731. This omission can partially be explained by both American and Soviet interest in the re-​use of the Japanese biomedical weapon program. As Washington was unwilling to share information with the Soviets, however, Moscow ultimately decided to abandon these considerations and organise a trial of captured Japanese military personnel to pursue other ideological and geopolitical aims. Valentyna Polunina, ‘Soviet War Crimes Policy in the Far East: The Bacteriological Warfare Trial at Khabarovsk, 1949’ in Morten Bergsmo, CHEAH Wui Ling, and YI Ping (eds), Historical Origins of International Criminal Law, vol 2 (Torkel Opsahl Academic EPublisher 2014) 552–​4. See also the different reports on the trial’s preparation and proceedings to Molotov: RGASPI f. 82, op. 2, d. 894, ll. 42–​168. 86 The Soviet government published a booklet on the Khabarovsk trial in Russian, English, and German:  Materialy sudebnogo protsessa po delu byvshikh voennosluzhashchikh iaponskoi armii, obviniaemykh v podgotovke i primenenii bateriologicheskogo oruzhia (Gosudarstvennoe izdatelstvo politicheskoi literatury 1950); Materials on the Trial of Former Servicemen of the Japanese Army, Charged with Manufacturing and Employing Bacteriological Weapons (Foreign Languages Publishing House 1950); Prozessmaterialien in der Strafsache gegen ehemalige Angehörige der japanischen Armee wegen Vorbereitung und Anwendung der Bakerienwaffe (Verlag für fremdsprachige Literatur 1950). Chinese and Japanese translations were also published. Polunina, ‘Soviet War Crimes Policy in the Far East’ (n 85) 557–​9. 87 Zeidler, Stalinjustiz contra NS-​Verbrechen (n 9) 33; Polunina, ‘Soviet War Crimes Policy in the Far East’ (n 85) 546.

21

On Different Ways of Being Public

211

this well. All of the defendants were Soviet citizens, and all of them had worked in the German-​organized local police forces during the war. Over the course of six days, more than 10,000 people from Pukhovichi and neighbouring districts were reported to have attended the sessions. Locals attended the trial, and locals were on trial: of the eighteen defendants, fourteen had been born in Pukhovichi district. Five of them were sentenced to death, the rest were handed long forced labour camp sentences.88 The timing of the trial, as press coverage makes clear, was not coincidental. In one of its articles, Stsiag Komunizma, the newspaper of Pukhovichi district, drew a direct line between Nuremberg and Mar’ina-​Gorka. As the German perpetrators were brought to justice by the IMT, the newspaper wrote, so were their ‘faithful assistants’ in Mar’ina-​Gorka.89 Locals also will have known of the trials of German soldiers that were held that winter, which included a trial at Minsk from 15–​29 January 1946. Like the 1943 Kharkiv trial and the IMT, these trials were covered extensively in the central, republican, and regional newspapers. Even for those who did not read newspapers avidly, it was impossible not to have heard of them: Nuremberg as well as trials of Axis military personnel were discussed repeatedly at factory or collective farm meetings organized by local party committees.90 The combination of multi-​level trials and press coverage therefore made it possible for inhabitants of Pukhovichi district to locate ‘their’ trial within the larger national and international context of Soviet retribution and its victory over Germany. Indeed, it was probably not accidental that one of the men on trial in Minsk, Bruno Mittmann, was accused of having committed crimes in Pukhovichi district.91 As a result, Moscow could present itself as master on both the international and the national stage, thereby merging the IMT, its domestic war crimes trials, and its treason trials into one narrative of morally just punishment. Saying that some of the trials of Soviet citizens were conducted in public, however, did not mean that they were much publicized beyond the locality in which they took place. While locals in Pukhovichi district could, for example, draw a clear 88  State Archive of Minsk Region (Gosudarstvennyi arkhiv Minskoi oblasti, hereafter GAMO) f. 1p, op. 2, d. 143, ll. 137–​40 (special secret police report on the trial to V. I. Kozlov, Secretary of the Minsk Regional Party Committee, 25 February 1946), ll. 143–​53 (verdict by the military tribunal of the secret police forces of Belorussia, 18–​23 February 1946). 89  ‘Sud Idze’ Stsiag Komunizma (Pukhovichi district 21 February 1946) 2. 90 I  surveyed the most important central newspapers (Pravda, Izvestiia, Krasnaia Zvezda), the main newspapers of the republics where the trials took place (Sovetskaia Belorussiia, Sovetskaia Latviia, Sovetskaia Litva, Sovetskaia Estoniia, and Sovetskaia Ukraina. Soviet Russia didn’t have a separate republican newspaper), and some of the newspapers of the regions where the trials took place (eg Rabochii Put’ for Smolensk region and Brianskii Rabochii for Briansk region). Media coverage also included newsreel as well as newspaper articles in both German and English, issued by the Soviet authorities in East Germany and the Soviet government in London, respectively. On international press coverage: Zeidler, Stalinjustiz contra NS-​Verbrechen (n 9) 30. 91 Archives of the United States Holocaust Memorial Museum (hereafter USHMM), RG-​ 06.025*03 (War Crimes Investigations and Prosecutions), Minsk 1945–​1946 (N-​18763, tom 18), Bruno Franz Mittmann, reel 599–​604. See also Bruno Mittmann’s interrogation at the January 1946 Minsk trial: Sudebnyi protsess po delu o zlodeianiiakh, sovershennykh nemetsko-​fashistskimi zakhvatchikami v Belorusskoi SSR (15–​29 ianvaria 1946 goda), reprint of the 1947 edition (Redaktsia zhurnala ‘Iustitsiia Belarusi’ 2010) 123–​30.

21

212

Soviet War Crimes Trials

line between the Nuremberg trial, trials of Germans, and the trial at Mar’ina-​Gorka, this was not possible for newspaper readers in Minsk or Moscow, and not even for readers in one of Pukhovichi’s neighbouring districts. The Mar’ina-​Gorka trial only found mention in the district newspaper.92 It was not mentioned in other district or regional newspapers, not to speak of the republican or central press.93 After December 1943, trials of Soviet citizens accused of having worked for the German occupation regime were neither reported in the central press like Pravda, Izvestiia, or Komsomol’skaia Pravda, nor in the main republican newspapers like Sovetskaia Belorussiia, Sovetskaia Ukraina, or Sovetskaia Estoniia. It was only in 1957, and then more frequently beginning in 1960, that articles about such trials began to appear in the central, republican, and regional press.94 What accounted for this chance in publicity? The international context likely played a role, in particular the rise of West Germany as a major European power, and heightened East-​West tensions over the continued employment of former Nazi functionaries in the West German state apparatus. Throughout the 1960s, the Soviet government repeatedly accused the West of harbouring war criminals and granting them immunity.95 By making its trials of Soviet citizens visible beyond the confines of the specific localities in which these had taken place, Moscow could demonstrate that in contrast to the Western countries, it was firmly committed to the punishment of suspected war criminals. Still, the number of defendants thus 92  Stsiag Komunizma covered the trial in No 18, 21 February 1946, and No 20, 28 February 1946. Nos 17 and 19 are not preserved in the National Library of Belarus. In the first post-​war years, Sovetskaia Belorussiia served as both the republican newspaper as well as the newspaper of Minsk region. It was published in Russian. Zviazda, the republican Belarusian-​language newspaper, also did not cover the trial. 93  This differed from the series of local trials that Soviet authorities conducted during the Great Terror 1937–​38. Echoing the three 1936–​38 Moscow trials, trials of ‘enemies of the people’ were conducted in various localities throughout the Soviet Union, but unlike the post-​war trials of alleged wartime traitors, these were also reported in the regional (oblast’) press, some even in the main central newspaper Pravda. Sheila Fitzpatrick, ‘How the Mice Buried the Cat: Scenes from the Great Purges of 1937 in the Russian Provinces’ (1993) 52 The Russian Review 299–​320. 94  Eg at Tallinn in March 1961, at Krasnodar in October 1963, and at Riga in October 1965. Lukasz Hirszowicz, ‘The Holocaust in the Soviet Mirror’ in Lucjan Dobroszyski and Jeffrey S. Gurock (eds), The Holocaust in the Soviet Union. Studies and Sources on the Destruction of the Jews in the Nazi-​Occupied Territories of the USSR, 1941–​1945 (M.E. Sharpe 1993) 39–​46. Sovetskaia Belorussiia, eg, began to publish trials of locals accused of having worked for the German occupation regime in February 1960, when it reported on a trial of a man in Mogilëv region who had served in the German-​organized police during the war. Sovetskaia Belorussiia (Minsk 9 February 1960). The republican newspapers also covered trials that took place in other Soviet republics. In 1961 alone, Sovetskaia Belorussiia covered a trial in Estonia (8 March 1961 and 10 March 1961), at Riga (17 March 1961 and 9 April 1961), in Vitebsk region (9 September 1961), and at Minsk (5 October 1961, 6 October 1961, 7 October 1961, and 19 October 1961). The trial that took place in March 1962 in Baranovichi (western Belorussia) shows well the multiple-​level coverage of these trials. Several Soviet citizens stood on trial here for having served as guards at a concentration camp in Koldychevo, a small town close to Baranovichi. At that time, it was part of Gorodishche district, which in turn was part of Brest region. The trial was covered extensively by Sovetskaia Belorussiia on 9 March 1962, 10 March 1962, 13 March 1962, 14 March 1962, and 16 March 1962. One level below, Zaria, the newspaper of Brest region, reported on the trial on 10 March 1962, 13 March 1962, 14 March 1962, and 16 March 1962. Another level further below, Chyrvonaia Zviazda, the newspaper of Baranovichi city, covered the trial on 10 March 1962, 13 March 1961, and 15 March 1962. Sovetskaia Rodina, the newspaper of Gorodishche district, also reported on it. 95  Prusin, ‘The “Second Wave” of Soviet Justice’ (n 40) 132–​5. Iryna Sklokina and Jared McBride are also currently conducting research into these later trials.

213

Assessing Soviet Justice

213

publicly revealed did not surpass more than several dozen men. Whatever the decisive factors for this change in publicity, it is clear that in the first ten to fifteen years after the war, the Soviet authorities were determined to keep public references about the involvement of Soviet citizens with the German occupiers to an absolute minimum. Reporting on the trials above the level of district newspapers would have revealed the extent to which Soviet citizens, whether willingly or unwillingly, had participated in the occupation regime. This, however, would have contradicted the official narrative of the war as an ‘all people’s war’, a war in which Soviet citizens on occupied territory, with a few exceptions, were said to have stood united against the Germans. At the trials of Axis soldiers, mention of local complicity in Nazi atrocities was likewise kept out.96 What this careful balancing of different levels, information, and audiences therefore demonstrates is that on the one hand, for the Soviet government, treason trials were not domestic issues only, but linked to more internationally oriented war crimes trials through official discourse (and in cases where Soviet citizens were prosecuted under the April 1943 decree, even through legal text). On the other hand, the mix of public, yet not much publicized treason trials betrayed the regime’s anxieties, namely the uneasiness that the Soviet government felt over the issue of local involvement in the German occupation regime.

Assessing Soviet Justice The Soviet Union, then, contributed to the global moment of post-​Second World War justice in significant ways: not only did the Soviet side take the lead during the war in pushing for the creation of an international tribunal that would try major Nazi leaders, it also made important conceptual contributions to the IMT’s legal framework, and showed its dedication to holding enemy soldiers legally accountable for their wartime conduct. At the same time, the fundamental parameters of Soviet justice did not change. Consequently, both Soviet war crimes trials and treason trials did not fulfil the criteria necessary to establish beyond doubt an individual’s criminal responsibility. This applied to the secret trials, which were usually conducted without defence lawyers or witnesses, and in the case of Axis soldiers, not seldom in mass trials that lasted fifteen minutes on average. During the pre-​trial investigations, the secret police routinely subjected the accused to psychological or physical

96  This is based on my analysis of newspaper reporting as well as internal trial records that were recently made accessible by the Archive of the Security Service of Ukraine (Otraslevoi gosudarstvennyi arkhiv Sluzhby bezopasnosti Ukrainy, hereafter OGA SBU). The discomfort also expressed itself elsewhere. In the early post-​war years, the original manuscript of The Black Book, an extensive collection of eyewitness accounts on the Holocaust in the German-​occupied territories that was compiled by the Soviet Jewish Anti-​Fascist Committee, passed through several stages of state censorship. The parts that the Soviet censors crossed out usually referred to the assistance that Soviet citizens had provided to the Germans, or to any manifestations of local anti-​Semitism. Joshua Rubenstein and Ilya Altman (eds), The Unknown Black Book. The Holocaust in the German-​Occupied Soviet Territories (Indiana University Press 2008) xxxvi.

214

214

Soviet War Crimes Trials

torture, most commonly beatings.97 It also, however, applied to the trials that were open to the public. At these, the authorities took great care to project an image of the rule of law, which always included the presence of witnesses and defence lawyers. At the 1946 Mar’ina-​Gorka treason trial, 140 local witnesses appeared in court over the course of only a few days, and testified how they and their families had suffered under German occupation.98 Lawyers were likewise present at all public war crimes trials and treason trials. The defendants at the trial of thirteen Hungarians and three Germans that took place from 17–​25 November 1947 in the Ukrainian town Chernihiv, for instance, were represented by seven lawyers from Moscow and Kiev. Usually, the lawyers agreed with the prosecution that the individuals on trial were guilty of the crimes they were accused of. If defending rank-​and-​file soldiers, they sometimes asked the court to consider that these had been under pressure to follow orders.99 At times, the lawyers even highlighted inconsistencies or inaccuracies in witness statements or indictments. During his defence of Lieutenant Colonel Bruno Baier at the Chernihiv trial, for example, the lawyer Pavliuk argued that no witness had been able to give concrete evidence of Baier’s crimes. Pavliuk still found Baier guilty, not least because he was a Nazi party member. Yet it was unclear if he had personally killed civilians.100 In a similar vein, the lawyer Sere’riakov argued that the court had not been able to establish if Lieutenant Colonel Stefan von Tiul’ff (probably von Tülff) had indeed commanded the army units responsible for the destruction of villages and the murder of civilians in Chernihiv region.101 Such statements could be taken to indicate that the lawyers were independent, yet that would mean to be misled by the Soviet staging of rule of law. As Vyshinskii wrote in 1936, the courtroom was to be ‘the laboratory where public opinion is 97  On lack of witnesses and torture as acknowledged in internal secret police reports, see, eg, the report by the NKVD military tribunals active in Belorussia in the second half of 1944: ‘Dokladnye zapiski i spetssoobshcheniia organov NKVD, NKGB i voennogo tribunala voisk NKVD belorusskogo okruga’, 29 November 1943–​4 August 1944, NARB f. 4p, op. 29, d. 22, ll. 32–​40, here l. 35. For more examples from 1947: ‘Dokladnye zapiski, spetssoobshcheniia i drugie materialy prokuratury respubliki, voennogo prokurora i voennogo tribunala’, 4 January–​26 March 1947, NARB f. 4p, op. 29, d. 600, ll. 64, 227–​32. On the mass trials of German and other Axis soldiers, see Zeidler, Stalinjustiz contra NS-​ Verbrechen (n 9) 41–​2. After their repatriation, most but not all soldiers reported that they had been subjected to different forms of ill-​treatment ranging from threats and beatings to time spent in isolated, cold cells in which water was constantly dropping down on the prisoner’s head. On the secret police’s beatings of Axis soldiers, here Hungarian nationals, during pre-​trial investigations, see also the internal secret police report in: ‘Materialy po sudebnomu protsessu nad voennymi prestupnikami vengerskoi armii 1947g.’ OGA SBU f. 60, papka 1288, tom 1, l. 19, 21. 98  On Mar’ina-​Gorka: GAMO f. 1p, op. 2, d. 143, ll. 139. On witnesses and defence lawyers present at all public trials of German and Axis soldiers:  Zeidler, Stalinjustiz contra NS-​Verbrechen (n 9) 29–​31; also Prusin, ‘Fascist Criminals to the Gallows!’ (n 9) 6. 99  At the 1947 Chernihiv trial, the lawyer Pavliuk argued that the soldier Iozef Borosh (probably Josef Boros) was guilty of having taken part in anti-​partisan reprisal actions, in the course of which villages were razed to the ground and countless civilians killed. However, his officers had frightened him when they made him believe that the Soviet partisans would torture him upon capture, which contributed to Borosh’s acquiescence. Pavliuk therefore asked the court to take these considerations into account when deciding on Borosh’s sentence. See Pavliuk’s defence in: ‘S stenogrammoi otkrytogo sudebnogo protsessa, proiskhodivshego v gor. Chernigove nad vengerno-​nemetskimi fashistskimi zakhvatchikami . . . ’ 17–​25 November 1947, OGA SBU f. 60, papka 1288, tom 2, chast’ 2, ll. 224–​8. 100  OGA SBU f. 60, papka 1288, tom 2, chast’ 2, ll. 224–​8. 101  OGA SBU f. 60, papka 1288, tom 2, chast’ 2, ll. 219–​23.

215

Assessing Soviet Justice

215

formed’. The lawyer’s responsibility was to assist the court in finding the real essence of a case, yet at the same time, he should not agree with everything the prosecution said or applaud every decision made by the judiciary.102 While secret police material on the preparation of the 1947 Chernihiv trial provides no indication that the lawyers’ speeches had to be pre-​approved, the authorities could rest assured that the defence would comply with what was expected of them: prior to the trial, the regional secret police had carefully screened the lawyers’ background, just as all of the witnesses had undergone a thorough pre-​trial screening and selection process.103 The lawyers at the Chernihiv trial were therefore perfectly in line with how the government envisioned their place within the Soviet legal system: in a subordinate, supportive role.104 As at the pre-​war trials of alleged state enemies, the judges were also not independent, even though they gave that appearance. The most important person on the stage was the prosecutor, the voice of the state; behind the scenes, the secret police shouldered the burden of the organizational work prior to and at the trials. In the end, however, the central political authorities always had the last word, whether concerning the choice of defendants, the indictment, or the verdict. While post-​war public treason trials, it seems, were largely left to the responsibility of communist party and secret police leaders in the individual Soviet republics (although these of course also reported to the central government in Moscow), control over the eighteen 1945–​49 public trials of Axis soldiers was located at the highest level, at the Politburo in Moscow. On average, the centre gave the republican and regional secret police about a month to find suitable defendants, witnesses, and lawyers. They also had to send weekly reports on the preparations to the secret police in Moscow and to a special central commission that not only coordinated the public trials, but whose composition also reflected continuities to pre-​war Soviet justice:  the commission on the trials of Axis soldiers was headed by Vyshinskii, who was secretly also in charge of the commission that managed the Soviet Union’s participation at the IMT.105 Prior to a trial, the indictment and the prosecutor’s closing speech had to be approved by Moscow. A week before the November 1947 Chernihiv trial, for example, Colonel Shveitser, head of Chernihiv’s secret police operational-​investigatory group that had identified and screened potential defendants, witnesses, and lawyers, as well as Major-​General of Justice Dunaev, the military prosecutor, and comrade Mitliaev, head of the military tribunal, appeared in front of the Vyshinskii commission for final approval of the proceedings. During the trial, the Chernihiv secret police had to send daily reports to the central secret police 102  Quoted in Samuel Kucherov, The Organs of Soviet Administration of Justice: Their History and Operation (E.J. Brill 1970) 522. 103  OGA SBU f. 60, papka 1288, tom 1, l. 3. 104  On the interwar transformation of the Imperial Russian Bar, a legal institution dedicated to the representation of individual interests, into an institution that was subordinated to Soviet state interests: Eugene Huskey, Russian Lawyers and the Soviet State: The Origins and Development of the Soviet Bar, 1917–​1939 (Princeton University Press 1986). 105  On the Politburo’s order to create the ‘Central Commission for the Organization of Trials of German-​Fascist Criminals’ headed by Vyshinskii, see:  ‘Protokoly No. 35–​47 zasedanii Politbiuro TsK VKPB’ 29 December 1945, RGASPI f. 17, d. 162, op. 37, ll. 159–​60. On Vyshinskii’s role at Nuremberg: Hirsch, ‘The Soviets at Nuremberg’ (n 4) 710–​3.

216

216

Soviet War Crimes Trials

and the commission, including detailed information on audience responses that was gathered by undercover secret police officers and civilian informers.106 Before going into effect, the verdict had to be approved by the Politburo. While Stalin was always kept informed and, when in doubt, also made the decisions, the key figure in this process was Molotov, to whom the secret police and Vyshinskii reported. In the weeks leading up to the December 1949 trial of Japanese soldiers, for example, it was Molotov who made the final decision as to who was to be prosecuted. Going over a draft of the indictment, he simply crossed out the names of defendants he did not deem suitable, which were then replaced by others. During the trial, he demanded daily reports on the proceedings. While the verdict had been written prior to the trial, the length of the forced labour camp sentences that the defendants were to receive had been kept blank. At the trial, the judges only had to fill in these blanks, yet even that decision had to be approved by Molotov before going into effect.107 Soviet war crimes trials and treason trials, then, shared many similarities with the classical pre-​war Soviet show trials. Nevertheless, at least the war crimes trials (the trials of Axis military personnel) differed from the interwar show trials in one crucial respect—​and that was the difference between fabricated (or imagined) versus actual and visible acts. At the 1920s and 1930s trials, the defendants were accused of acts such as industrial sabotage or plotting against the Soviet government that had as a whole not taken place. In contrast, the acts that the defendants at Soviet war crimes trials were accused of had, of course, been committed. This included the killing of captive Red Army soldiers, Jews, or other civilians, rounding up people for forced labour in Germany, or participating in punitive raids that saw entire villages razed to the ground. In consequence, the Soviet prosecution had no difficulty in presenting evidence of atrocities committed by German or other Axis military personnel.108 What was much more difficult, indeed often impossible, was to provide material that testified to the defendants’ personal participation in these acts.109 This, however, 106  OGA SBU f. 60, papka 1288, tom 1, ll. 7–​8. 107  The verdicts, with the sentence kept blank, can be found in Molotov’s personal fond: RGASPI f. 82, op. 2, d. 894, ll. 141–​2. During the 1945–​46 trials, some of the verdicts were sent to Molotov, Beriia, and Malenkov, while others were only sent to Molotov, who kept Stalin informed. RGASPI f. 82, op. 2, d. 894, ll. 1–​29. 108  At least in one case, however, it is known that the Soviet prosecution fabricated a charge: At the public trial of German military personnel that took place in Leningrad from 29 December 1945 to 5 January 1946, two witnesses testified that in 1941, SS units had killed Polish officers in the forest of Katyn, close to Smolensk. One of the defendants, Arno Düre, admitted to having participated in these killings, although that could not have been the case: the murder of several thousand Polish officers at Katyn was committed by the Soviet secret police in the spring of 1940. ‘The Leningrad Trial’, Soviet News (London 7 January 1946); Prusin, ‘Fascist Criminals to the Gallows’ (n 9) 15. 109  To give an example, some of the defendants at the 1947 Chernihiv trial had served in the 105th Hungarian infantry brigade, which had, under German command, participated in large-​scale ‘anti-​ partisan’ operations, in the course of which whole villages accused of cooperation with the partisans were razed to the ground and their inhabitants killed. As Chernihiv secret police officers wrote in their pre-​trial reports to the secret police in Kiev, the problem was, though, that they could only accuse the potential defendants of having served in an army that had committed atrocities against civilians, but that they were unable to provide evidence for individual acts committed by the defendants. OGA SBU f. 60, papka 1288, tom 1, ll. 19–​21. On the complicity of the Hungarian forces: Wendy Lower, ‘Axis Collaboration, Operation Barbarossa, and the Holocaust in Ukraine’ in Alex J. Kay, Jeff Rutherford,

217

Assessing Soviet Justice

217

did not deter the authorities. If need be, the prosecution and judges simply applied the principle of collective responsibility, whereby a defendant was declared guilty by way of his membership in an organization deemed criminal.110 Moreover, the difficulties in conjuring evidence attesting to an individual’s criminal responsibility do not seem to have affected public perceptions of Soviet justice. According to secret police reports, the absolute majority of the 600 local inhabitants that attended the January 1946 trial of German soldiers at Mykolaiv (Ukraine), for example, approved of the trial. Their comments, collected by officers disguised as civilians and other informers, had a ‘patriotic character, expressing a desire for just retribution’.111 Likewise, when the prosecutor asked for the highest punishment to be applied at the February 1946 treason trial in Mar’ina-​Gorka, the more than 2,000 local inhabitants present at this point met his request with ‘approval and applause’.112 Indeed, for some, Soviet justice was too lenient: at the Mykolaiv trial, workers of the fifth shop floor of factory No 445 were reported to have said that Soviet courts were ‘unnecessarily humane towards the Germans’, while another worker, during a break, asked his neighbour: ‘Why mess around with them for long? Kill them, like dogs, indeed all of them. Are these even people?’113 Similar comments were recorded at the November 1947 Chernihiv trial. As the secret police wrote in its report: ‘Many workers of Chernihiv expressed their regret that the death sentence has been abolished and that the Fascist occupiers will not be hanged’.114 Secret police and informer reports are, of course, a notoriously difficult source, and have to be treated with much caution. There was no guarantee that informer reports were accurate, and that people had indeed said what they were alleged to have said. Since the existence of informer networks was known to everyone, it is also possible that a person told someone whom he surmised of being an informer what he assumed the other wanted to hear. In other words, people’s expectations could have affected their behaviour, and depending on whom they spoke to, they adjusted their comments accordingly. Yet even in cases when observers otherwise sensed that the proceedings were predetermined, they usually deemed the Soviet trials justified and right. Edwin L. James, the New York Times correspondent present at the December 1943 Kharkiv trial, thought that the trial was a ‘red propaganda coup’, but it was ‘justified propaganda, which is perhaps without equal in this war’.115 This and David Stahel (eds), Nazi Policy on the Eastern Front, 1941. Total War, Genocide, and Radicalization (University of Rochester Press 2012) 195. 110 On the application of collective responsibility:  Aleksandr Epifanov, ‘Strafverfolgung von Kriegsverbrechern aus den Reihen der Wehrmacht in der UdSSR’ in Gabriele Gorzka and Knut Stang (eds), Der Vernichtungskrieg im Osten. Verbrechen der Wehrmacht in der Sowjetunion—​aus Sicht russischer Historiker (University of Kassel Press 1999) 129. 111  Quoted from one of the secret police’s reports in ‘Sledstvennaia chast’ NKGB USSR delo No 17 s materialami podgotovki i provedeniia otkrytogo sudebnogo protsessa nad nemetskimi karateliami i ushastnikami zverstv za 1946 god’. OGA SBU f. 7, op. 9, delo 11, l. 154. 112  Quoted from GAMO f. 1p, op. 2, d. 143, l. 139. 113  Quoted from OGA SBU f. 7, op. 9, delo 11, l. 155 (11 January 1946 report), l. 162 (12 January 1946 report). 114  OGA SBU f. 60, papka 1288, tom 1, l. 80. 115  James, ‘Red Propaganda Coup Seen in Atrocity Trial’ (n 49) E 3.

218

218

Soviet War Crimes Trials

was also how the American journalist Edmund Stevens experienced the December 1943 trial at Kharkiv: ‘During the recesses, I discovered that many of the people in the audience had personal knowledge or experience of the events and atrocities described . . . Several times during more gruesome bits of evidence there were stifled sobs from some woman.’116 According to Stevens, the local audience knew what verdict the defendants could expect: ‘The court and the people watching knew what was coming. Most of them had seen the four gallows-​trees being erected in the center of the market place.’117 The continuities with pre-​war Soviet justice might not have been lost on the audience; they were certainly not on Stevens, who had also attended the third Moscow show trial in March 1938.118 Still, precisely because of people’s profound experience of personal suffering, this did not seem to have mattered much, if at all.

Conclusion Analysing the role that the Soviet Union had in the global moment of post-​Second World War justice makes clear that contributions by a state with an illiberal legal system formed an integral part of the early history of international criminal law and war crimes trials. From early on into the war, Moscow was determined to hold the Germans and their allies accountable for the atrocities that these had committed during the invasion and subsequent occupation of the Soviet western regions. While Stalin and the leading Bolsheviks were willing to work together with their Western partners as long as this served their needs, they ultimately charged ahead. With the April 1943 decree, the Soviet Union created the foundation for the prosecution of wartime atrocities. The Soviet Union was also first among the Allies to put Axis soldiers on trial, at Kharkiv in December 1943. Given that a Soviet citizen was tried together with three Germans, the trial clearly had both international and domestic dimensions. In that, it mirrored strategies that the Soviet government had pursued at a series of high-​profile trials of alleged political enemies in the interwar years. What differed, arguably, was the prominence that was now assigned to the international. Apart from demonstrating Moscow’s determination to try anyone suspected of having committed crimes in the name of German power, the trial at Kharkiv also served as an experiment to see how the Western Allies would respond to this Soviet version of a war crimes trial. Clearly, for Stalin and his inner circle, domestic and international justice, and for that matter politics, were closely linked. In the immediate post-​war years, Moscow 116  Quoted from Stevens, Russia is No Riddle (n 49) 111. 117  Ibid. 114. 118  ‘The Russians are past masters at mis en scène, and the atmosphere of the Kharkov trial room was distinctly reminiscent of the famous Treason Trials of 1936–​38.’ Instead of ‘the Russians’, ‘the Soviets’ would have been a more accurate description. Quoted from Stevens, Russia is No Riddle (n 49) 111. For Stevens’ notes on the March 1938 trial see: Cheryl Heckler, An Accidental Journalist. The Adventures of Edmund Stevens 1934–​1945 (University of Missouri Press 2007) 1–​8, 58–​9. Stevens first came to the Soviet Union in 1934 and spent almost his entire adult life there, working as a correspondent for British and American newspapers.

219

Conclusion

219

continued to tailor the public trials of Axis soldiers and Soviet citizens according to its political needs. Depending on the time, place, and type of trial, the extent of the connection between the international and the domestic varied in these prosecutions. What also varied was the degree of publicity—​which in turn revealed the regime’s anxieties. The prosecution of alleged collaborators in front of local audiences was undoubtedly crucial for the re-​establishment of Soviet authority in formerly German-​occupied regions. Yet after the July 1943 Krasnodar and the December 1943 Kharkiv trial, and until the late 1950s, Moscow was determined to keep media references to trials of Soviet citizens accused of having worked for the German occupation regime limited to the local level. Otherwise, the government would have contradicted its official narrative of the war as an ‘all people’s war’, a war in which the population in occupied territory was, with a few exceptions, said to have stood united behind the Soviet partisans and the government in Moscow. Soviet wartime and post-​war justice, then, did not differ from its pre-​war version, at least not with regard to the basic structures and pillars on which the legal system rested. Although the Soviet side made productive contributions to the history of international criminal law, its domestic legal system continued to lack fundamental standards of rule of law-​based legal systems that form the precondition for any trial to be considered as impartial as possible. In one crucial respect, though, the Soviet trials of Axis military personnel were distinct from Soviet pre-​war justice. The difference lay in fabricated (or imagined) versus actual and visible acts, and in the extent to which almost everyone in occupied territory had suffered under the Germans. This, in turn, affected public perceptions of the trials—​and therefore possibly also the meaning that these could have for Soviet citizens. As the example of the Soviet Union indicates, within the global moment of post-​Second World War justice, the acts that had been committed could legitimize a significant lack of rule of law. They also, however, distinguished Soviet war crimes trials (although less so the treason trials) from Soviet pre-​war trials—​and in that sense accounted for differences within illiberal justice.

20

12 Theodor Meron and the Humanization of International Law Aleksi Peltonen

Approaching International Criminal Law through Life-​Writing The recent turn to history in international legal scholarship has sprouted a number of biographical and microhistorical, even autobiographically flavoured, studies on the origins of international law.1 These texts seek to challenge not only the standard, theoretical approaches that scrutinize international law in terms of conceptual abstractions, but also those dominant historical accounts that describe the evolution of international law as a linear progress narrative or a set of epochs.2 The current trend leans towards microhistory and various forms of life-​writing other than traditional biography, for contemporary writers in this genre seem to be less interested in the individuals themselves than in what their life stories can teach us about international law as a discourse.3 It is precisely here that biographically oriented research appears to offer an interesting and productive alternative to traditional legal scholarship and history. Instead of seeking to legitimize present practices by reference to tradition, it 1  See, eg, Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–​1960 (Cambridge University Press 2001); Thomas Skouteris, ‘The Vocabulary of Progress in Interwar International Law: An Intellectual Portrait of Stelios Seferiades’ (2005) 16 (5) European Journal of International Law 823; Paolo Amorosa, ‘James Brown Scott’s International Adjudication between Tradition and Progress in the United States’ (2015) 17 Journal of the History of International Law 15; Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity (Weidenfeld & Nicolson 2016). For a useful discussion on biographical/​autobiographical writing, see Andrew Lang and Susan Marks, ‘People With Projects: Writing the Lives of International Lawyers’ (2014) 27 Temple International and Comparative Law Journal 437. 2  See, eg, Koskenniemi, Gentle Civilizer (n 1) 6–​10. 3  According to Lepore, here lies one of the essential differences between biography and microhistory: ‘If biography is largely founded on a belief in the singularity and significance of an individual’s life and his contribution to history, microhistory is founded upon almost the opposite assumption: however singular a person’s life may be, the value of examining it lies not in its uniqueness, but in its exemplariness, in how that individual’s life serves as an allegory for broader issues affecting the culture as a whole.’ Jill Lepore, ‘Historians Who Love Too Much: Reflections on Microhistory and Biography’ [2001] The Journal of American History 129, 133. On life-​writing, see Hermione Lee, Body Parts: Essays on Life-​ writing (Random House 2010) 100; and Hans Renders, ‘The Limits of Representativeness: Biography, Life Writing, and Microhistory’ in Hans Renders and Binne de Haan (eds), Theoretical Discussion of Biography: Approaches from History, Microhistory, and Life Writing (Brill 2014). Theodor Meron and the Humanization of International Law. Aleksi Peltonen. © Aleksi Peltonen, 2019. Published 2019 by Oxford University Press.

21

The Humanization Project

221

can be used to shake up our sentimental faith in the inherent value of pedigree. By highlighting discontinuities, discrepancies, and the role of personal struggle in the formation of international law, biography can be used to challenge fixed historical narratives and shake up hierarchies that appear as natural parts of our world—​to undermine the universal in international law. Yet, there is nothing inherently progressive about the turn to the history of international lawyers. Like any form of history, it comes with a set of limitations that spring from the methodical choices that define it and separate it from other approaches. The structure-​agency dilemma, for instance, poses a major challenge for life-​writing. Any attempt to make sense of international law through personal struggles requires us to draw explicit or implicit causal relations between individual projects and the conditions in which they are undertaken. The difficulty lies in determining which way the causal arrows run in each particular case. History cannot be understood solely in terms of freely made choices or deeds because individuals act in response to larger social structures. These structures, in turn, continue to exist only insofar as they are sustained by people’s actions. There appears to be no solid ground, no objective point of view, between these two binary opposites of causal explanation. So perhaps the relevant question is not whether one form of history writing is more credible than the other, but rather what these different kinds of histories can be used for. It seems to me that legal life-​writing is currently seized by the leftist/​postmodernist movement that seeks to change existing systems of hierarchy by attacking claims about rationality and objectivity in international legal discourse. Situating lawyers in the social and political context within which they act and write, biographically oriented research operates as a powerful tool for advocating an understanding of international law not as a self-​contained (autonomous, gapless, and internally coherent) system that exists ‘out there’, but rather as something that should be defined in terms of various projects pursued by individuals who make up the field. It is within this tradition of thought that this chapter explores the possibilities and challenges of legal life-​writing. What follows is a concise and somewhat experimental portrait of Theodor Meron that seeks to situate his humanization thesis, and particularly his strong advocacy for the expansion of individual criminal liability to non-​international armed conflicts, within his biographical context. But rather than seeking to explain the causes of particular changes in international law solely in terms of human agency, this chapter asks to what extent, if at all, historical data allows us to make such causal inferences.

The Humanization Project In 2000, the American Journal of International Law published an article titled ‘The Humanization of Humanitarian Law’ written by a professor of international law at New York University School of Law and a future judge of the International Criminal Tribunal for the former Yugoslavia, Theodor Meron.4 In his paper, Meron advocates 4 Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of

2

222

Meron and the Humanization of International Law

what has come to be a central theme of his scholarly work, namely, a view according to which the laws of war are in a continuous process of becoming more humane. Offering a historical overview of the recent developments in the field, Meron traces what he calls ‘the evolution of the law from an interstate to an individual-​rights perspective’, explaining how the reciprocal character of classic international law, and humanitarian law in particular, has undergone a significant transformation in the sense that human rights thinking has started to permeate the formation and interpretation of law.5 As a result, the laws regulating warfare have acquired a more humane face: with human rights in the picture, humanitarian law has extended not only its coverage of protection but also that of individual accountability. What Meron finds to be a common denominator of both systems, human rights and humanitarian law, is the principle of humanity, which has allegedly become the guiding principle for international law-​making.6 Beneath this progressive change, a trend of adopting human rights methods to the interpretation of customary rules of war has emerged. International courts—​as well as other institutions interpreting the content of law, such as the International Committee of the Red Cross (ICRC)—​have started to give more weight to verbal statements of governmental representatives and declarations of international organizations at the cost of actual battlefield practice. So even if the actual compliance with the rules of humanitarian law has been modest, international institutions have managed to do away with the ‘rather large gap between practice and the norms concerned’ by way of drawing on opinio juris in situations where the practice of states has been scant or inconsistent—​even contrary to the presupposed norms.7 The subtle normative proposition of the article is that we should be favorably disposed towards this trend and accordingly embrace the notion of ‘human dignity’ as an interpretational device by which we could understand the meaning of sometimes obsolete International Law 239. One can easily detect similar line of thinking in his earlier works, such as Human rights in Internal Strife: Their International Protection (Grotius Publications LTD 1987). Later on, Meron has continued to elaborate on this idea in his book The Humanization of International Law (Martinus Nijhoff Publishers 2006), where he traces the rippling effect of humanization onto public international law as well. According to Meron himself, the title of this book closely describes ‘the overarching theme of [his] life’s work’. Theodor Meron, ‘A Life of Learning: Charles Homer Haskins Prize Lecture for 2008’ (2008) 65 American Council of Learned Societies 1, 14. 5  Meron, ‘Humanization’ (n 4) 240. According to Meron, the increasing focus on the protection of persons against their own government authorities cannot be explained in terms of reciprocity anymore, but only by reference to the requirements of humanity. Accordingly, the contractual and interstate basis of humanitarian law is withering away as the non-​consensual human rights oriented thinking is claiming ground. This change is epitomized, inter alia, in the emergence of international instruments such as the Nuremberg Charter, the Geneva Conventions, and the Genocide Convention, all of which have lifted the individual to the centre of attention: not only are the victims of war granted more protection, but also the notion of individual criminal liability has become an explicit part of the laws of war. Ibid. 251. 6  Ibid. 245. 7  Ibid. 244. This is evident in two prominent cases before the International Court of Justice, Nicaragua v United States and the Nuclear Weapons Advisory Opinion. In both cases, the Court was forced to balance between ‘emerging’ customary norm based on opinio juris and contrasting state practice. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v USA) (Judgment) [1986] ICJ Rep 14; Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Rep 1996, 226.

23

The Humanization Project

223

humanitarian law instruments in the context of the present.8 Here Meron lays the main burden on lawyers working in the field of humanitarian law. If states are unwilling or incapable of agreeing on the specifics of humanitarian norms or comply with existing ones, it is the task for scholars and international judges to detect the social consensus beyond states demanding efforts to humanize the behaviour of troops in the battlefield.9 In particular, Meron nominates legal academics as agents for the generation of the public conscience. It is their duty to educate the general public, not only about the content of law but also of the values that lie beneath it. Indeed, for Meron ‘the creation of a culture of values is indispensable’ for effective development of international law.10 These sentiments are not peculiar to Meron alone. Towards the end of the century, it had become fashionable to assert that the Westphalian structure of international law was giving in to a new globalizing order that was more cohesive and more responsive to people within states.11 It was the individual, not the state, who was now to be protected as well as held accountable under international law. For many, this paradigm shift was epitomized in the merger of international human rights and humanitarian law, described by one author as ‘the most pronounced change in the international legal system’.12 This perceived change in international law was closely linked with the collapse of the Soviet Union, which was understood to have dissolved the great ideological divide and given rise to an era of inter-​state cooperation, increasing democratization, and a wave of liberalization.13 Indeed, proclaimed as 8  For instance, Meron celebrates how the rights-​oriented thinking has affected the interpretation of the repatriation clause of the Third Geneva Convention. Although the wording of the Convention implies that the state’s duty to repatriate prisoners of war after the cessation of active hostilities should be understood as a right of the state to have the prisoners repatriated, subsequent developments have recast the meaning of the provision and changed the right of the state to a right of the prisoner to be repatriated. Accordingly, states are not allowed to repatriate prisoners in their home country by force anymore but must ascertain the willingness of each prisoner to be repatriated. Meron, ‘Humanization’ (n 4) 253–​6. 9  Ibid. 244. 10  Ibid. 278. 11  Richard Falk, Revitalizing International Law (Iowa State University Press 1988); Louis Henkin, The Age of Rights (Columbia University Press 1990); Michael Reisman, ‘Sovereignty and Human Rights in Contemporary International Law’ (1990) 84(4) American Journal of International Law 866; Thomas M. Franck, The Empowered Self: Law and Society in the Age of Individualism (Oxford University Press 1999); Ruti G. Teitel, ‘Humanity’s Law: Rule of Law for the New Global Politics’ (2001–​02) 35 Cornell International Law Journal 355. For a more recent contribution, see Anne Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 European Journal of International Law 513. 12  Teitel, ‘Humanity’s Law’ (n 11) 359. This narrative found its critics as well. Aeyal Gross, eg, suggests that in the context of belligerent occupation the merger of human rights and humanitarian law actually serves to legitimize violations of the rights of people living under occupation. Aeyal M. Gross, ‘Human Proportions:  Are Human Rights the Emperor’s New Clothes of the International Law of Occupation?’ (2007) 18 European Journal of International Law 1. For a useful discussion on the convergence thesis, see Orna Ben-​Naftali and Yuval Shany, ‘Living in Denial: The Application of Human Rights in the Occupied Territories’ (2003–​04) 37(1) Israel Law Review 17; Hans-​Peter Gasser, ‘International Humanitarian Law and Human Rights Law in Non-​International Armed Conflict’ (2002) 45 German Yearbook of International Law 149; David Luban, ‘Human Rights Thinking and the Laws of War’ in Jens David Ohlin (ed), Theoretical Boundaries of Armed Conflict and Human Rights (Cambridge University Press 2016). 13  According to Huntington, the dramatic growth of democracy since mid-​1970s, characterized as ‘one of the most spectacular and important political changes in human history’, led to an expansion in the zone of peace and reduction in the likelihood of interstate conflicts. Samuel P. Huntington ‘After Twenty Years: The Future of the Third Wave’ (1997) 8 Journal of Democracy 3, 4.

24

224

Meron and the Humanization of International Law

the ‘decade of international law’ by the General Assembly,14 the ’90s were marked by an increase in Security Council’s activity, international judicial interventions, and general enthusiasm for international rule of law.15 Within this context, it was easy for writers like Meron to depict the convergence of human rights and humanitarian law as a natural continuation of international law’s progress.16 But, as Anne Orford has persuasively demonstrated elsewhere, great transformations in the way we perceive international legal order do not simply emerge because ‘the time is right for humanity to realize its own law, or because a set of intellectual preconditions happen to have coalesced’ to produce a given change.17 Much like the responsibility to protect concept, humanization did not emerge as a fully fledged idea that suddenly changed the course of international law, but rather as an ex post explanation and rationalization of already existing practices. The interesting question is, then, why did Meron come to embrace just those practices that he did while simultaneously excluding many others. Should we read his works merely as dispassionate, neutral, and objective studies of international law, or could there be something more personal involved? Even if we are left with only speculative answers, the question is nevertheless worth exploring. In order to better understand the present, we must study all those disparate events, undertakings, and conjunctions that got us here. One good place to start, I suggest, is with people and their stories.

Life and Career of Theodor Meron Theodor Meron was born in 1930, in the small town of Kalisz, Poland, to a middle-​ class Jewish family. His childhood was interrupted by the upcoming war, which forced him to drop out of school at the age of nine and led him and his family to spend the following years in ghettos and eventually in work camps. Meron spent four years of his childhood in a Nazi work camp at Częstochowa and lost his mother, brother, and all four of his grandparents in the course of the Holocaust. After the war ended, Meron left Poland and settled in Palestine, where he strove to catch up with the six lost school years before entering high school. After completing high school, as well as military service, Meron commenced his law studies at the University of Jerusalem. Harvard and Cambridge followed, and Meron became increasingly interested in human rights and humanitarian law. While he had started to focus on international law already at Jerusalem, it was not until Harvard, where he worked closely with his two mentors, Richard Baxter and Louis Sohn, that Meron found 14  G.A. Res. 23, 44th Sess., U.N. Doc. A/​Res/​44/​23 (1989). 15  See, eg, Fabián O. Raimondo, ‘General Principles of Law, Judicial Creativity, and the Development of International Criminal Law’ in Shane Darcy and Joseph Powderly (eds), Judicial Creativity at the International Criminal Tribunals (Oxford University Press 2010) 59. 16  This argumentative strategy is particularly reminiscent of the techniques used by James Brown Scott, one of the most influential international lawyers of the interwar period, who sought to root international law in the American common law tradition. Amorosa ‘Between Tradition and Progress’ (n 1). See also Skouteris, ‘Vocabulary of Progress’ (n 1). 17  Anne Orford, ‘In Praise of Description’ (2012) 25 Leiden Journal of International Law 609, 617.

25

Life and Career of Theodor Meron

225

his vocation in international law. The impact of the war never left him, and Meron felt a strong desire to work in areas where he could participate in preventing mass atrocities from occurring.18 While a career in academia appeared to be a natural choice for Meron, at Cambridge he acquainted himself with Shabtai Rosenne, then Legal Adviser to the Israeli Foreign Ministry, who offered him a job in the Israeli Foreign Service.19 With no academic jobs in sight, Meron took the position and ended up working for the Israeli Foreign Service for the next twenty years, holding a variety of different positions, writing legal opinions, participating in international conferences, and to a lesser extent, litigating cases.20 In 1961, Meron joined the Permanent Mission of Israel to the United Nations in New York, and in 1967 he became Legal Adviser to the Foreign Ministry, succeeding Rosenne. Between 1971 and 1975, Meron worked as the Israel’s Ambassador to Canada. During these years, he regained his connection with academia through his part-​time teaching position at the University of Ottawa. He also wrote his first article for the American Journal of International Law, a journal that later became the principal platform for his publications, and where he also ended up serving as the co-​ editor-​in-​chief from 1993 to 1998. During his years in Ottawa, Meron further wrote his first book, Investment Insurance in International Law (1976), a rather technical piece of writing inspired by his work with Baxter and Sohn at Harvard on the law of state responsibility. Despite his long career in the Israeli Foreign Service, the call of academia remained strong, and Meron sought ways to leave the Foreign Service for a job at the academia.21 In 1977, he was granted a year’s leave and went to New York on a Rockefeller grant to write his second book, The United Nations Secretariat: The rules and the Practice (1977). During that year, Meron also taught at NYU School of Law, where he finally obtained, at the age of forty-​eight, a full-​time faculty position. Thus in 1978 Meron moved permanently to the US and started to teach, at the request of the NYU faculty, a course on human rights. The task must have been challenging. Not only was the emerging discipline of human rights law in its adolescence (at the time human rights was not a subject regularly taught at law schools) but Meron also lacked experience in the field. During his years with the Israeli Foreign Service, he mostly dealt with state responsibility, treaties, and humanitarian law. Nevertheless, teaching human rights ‘proved a blessing’, and Meron quickly came to find a strong convergence between the two disciplines, human rights and international humanitarian law.22 His desire to integrate the two bodies of law into one set of norms, guaranteeing a maximum protection for human beings in all situations, and his attempt to ground them in a general theory

18  Meron, ‘A Life of Learning’ (n 4) 2. 19 Ibid. 20 Throughout his career, Meron litigated only two cases before the International Court of Justice: Aerial Incident of 27 July 1955 (Israel v Bulgaria) [1959] ICJ Rep 127; and Case Concerning Oil Platforms (Islamic Republic of Iran v United States of America) [2003] ICJ Rep 161. 21  Meron, ‘A Life of Learning’ (n 4) 5. 22  Ibid. 6.

26

226

Meron and the Humanization of International Law

of law are particularly vivid in his books, Human Rights Law-​Making in the United Nations (1986), Human Rights in Internal Strife (1987), and Human Rights and Humanitarian Norms as Customary Law (1989). But Meron never lost his touch with or his faith in the importance of the practice of law. For him, it was just as important to teach government officials and other decision-​makers as it was to teach people working in academia.23 He became involved with a number of human rights organizations, most notably the ICRC, where he participated in the extensive study on customary international law, conducted by Jean-​ Marie Henckaerts and Louise Doswald-​Beck. In contrast to his work in the neutral territory of Geneva, where he also held a Professorship at the Graduate Institute of International Law from 1991 to 1995, Meron spent a considerable amount of time defending the interests of the US government. As a member of the US delegation, he participated in the 1990 Conference on the Human Dimension of the Conference for Security and Co-​operation in Europe as well as the 1998 Rome Conference on the Establishment of an International Criminal Court, where he was involved with negotiating the provisions on war crimes and crimes against humanity. In 2001, he was appointed Counselor on International Law in the State Department, shortly after having assisted the US State Department on the Oil Platforms case. In the midst of his counsellorship, at the age of seventy-​one, Meron was elected as a judge to the International Criminal Tribunal for the former Yugoslavia (ICTY), where he was also to serve as the President of the Tribunal from 2003 to 2005 and again from 2011 to 2015. Having served the longest presidency at the ICTY, Meron eventually became a well-​known name in the field of international criminal law. By now, his notion of humanization had become a standard linguistic tool for anyone working in the realm of humanitarian law. But not too many demonstrate awareness of the origins of the concept, which arguably lie in the juristic sensibilities of the post-​war Manhattan School. For it was not until Meron’s arrival at the NYU, home to many scholars who shared a commitment to liberal internationalism, that his academic interests truly started to drift between human rights and humanitarian law. While he probably did not play a significant role in shaping the legal consciousness of post-​ war American international law, Meron certainly embraced the intellectual sentiments of the Manhattan School, which, according to David Kennedy, had started to dominate the field of international law after 1960.24 By the time Meron joined the NYU faculty, in 1977, New Yorkers—​Thomas Franck, Oscar Schachter, Wolfgang Friedmann, Louis Henkin, and others—​were starting to estrange themselves from constitutionalist sentiments and were gradually shifting towards ethics and human rights, embracing the importance of education and legal scholarship in shaping the conscience of the future world.25

23  Ibid. 7. 24  David Kennedy, ‘Tom Franck and the Manhattan School’ (2002–​03) 35 The New York University Journal of International Law and Politics 397. 25  Ibid. See also Koskenniemi, ‘Gentle Civilizer’ (n 1) 477–​9.

27

Creating a Culture of Values

227

Creating a Culture of Values On 3 October 1980, a three-​day long conference on Teaching International Protection of Human Rights was held at the New York University School of Law. The primary objective of the conference was to generate ideas for an upcoming book on human rights that was being prepared under the direction of Theodor Meron. It also formed a part of an incipient project to promote wider teaching of human rights in law schools, an undertaking that was to be instigated by offering a groundbreaking volume on human rights that would not only serve as a textbook for students but also contain pedagogical suggestions for teachers. The initiative was indeed ambitious as it sought to introduce the new discipline of human rights into the mainstream of American legal education at a time when only twenty out of more than 150 law schools in the US taught courses in human rights. The conference was attended by an impressive group of experts and scholars from various areas, including lawyers, historians, philosophers, political scientists, and sociologists.26 The shared intuition among the participants was that the high number of large scale human rights violations posed the most dangerous ‘stumbling block to the evolution of peace and progress of the human race’.27 For them, the promotion of human rights was a valuable project in itself and, if not the solution to the ongoing conflicts, then at least an essential part of it. This was something that could eventually be achieved through pressuring governments to implement and enforce human right norms, but the groundwork was to be laid by educating the public.28 Within this process, the role of the academia was indispensable: [I]‌t is only when every major university in the enlightened world will have a chair dedicated to the teaching of human rights that human rights will come of age.29

Some four years later the volume was finally published, with Professor Meron’s first chapter offering a detailed overview of its content and central aims.30 Remarkably, the uncritical enthusiasm towards human rights that prevailed at the conference is even more vivid in Meron’s introductory chapter: what he sees as problematic is not the question of whose rights we should promote but how to make the implementation and enforcement schemes of human rights more efficient. Indeed, the book is 26  The attendees included, among others, Yoram Dinstein, Louis B. Sohn, John Humphrey, Rosalyn Higgins, Thomas Buergenthal, Louis Henkin, and Thomas Franck. 27  Theodor Meron, ‘A Report on the N.Y.U. Conference on Teaching International Protection of Human Rights’ (1980–​81) 13 The New York University Journal of International Law and Politics 881, 889. 28  As Yoram Dinstein put it: ‘I would suggest to you that the evolution of human rights is actually the outcome of pressure exerted by public opinion on the states . . . Now in order to have these pressures brought to bear upon governments, what is indispensable is to educate the public. There cannot be any public opinion if the public does not form an opinion. And the public cannot form an opinion without education.’ Ibid. 887–​8. 29  Dinstein at the Conference. Ibid. 30 Theodor Meron (ed), Human Rights in International Law:  Legal and Policy Issues (Oxford University Press 1984).

28

228

Meron and the Humanization of International Law

about fundamental freedoms that belong to all, irrespective of their geographical or cultural situation. But while the reach of the book’s substantive issues is presented as global, their content is drawn from the legal systems of Western democratic states. The book begins with a comparison between international human rights and civil rights in the US and ends with a detailed discussion of the Inter-​American and European systems for the protection of human rights. Yet, there is no chapter dedicated to the examination of other regional systems. The Organization of African Unity or the League of Arab States, for instance, are not discussed because they are ‘in their early stages’ as opposed to the ‘highly advanced’ practice developed under the European Convention or the ‘principal human rights system’ of the US constitution.31 The latter, in particular, is presented in many respects as the model for international human rights law—​as the forerunner in the ‘internationalization of human rights’.32 According to Meron, it is the duty of all human rights teachers around the world to explain this ongoing transformation and participate in enhancing the processes through which human rights are clarified and implemented globally.33 This universalization thesis reoccurs in Meron’s three subsequent books that followed within the next few years.34 In these works, he juxtaposes the progressive development of human rights law with political power play: it is for the academic community to ‘identify the areas where more law-​making is needed, and act as a catalyst for public opinion, thus encouraging the formation of consensus’.35 While accounting for the politics in international law-​making, Meron perceives it merely as a problem to be overcome. He finds the general terms by which treaty provisions are often drafted to be the result of political stalemates, a deplorable consequence of multinational treaty-​making.36As such they represent shortcomings in the progressive narrative of law, not affirmations of the plurality of values. The same line of thinking applies to the interpretation of human rights instruments: for Meron, all conflicting interpretations of existing human rights norms between various regional institutions fall into the category of decline.37 Eventually, thus, cooperation between 31  Ibid. 6. 32  In ­chapter 8, ‘Race, Sex, and Religious Discrimination in International Law’, for instance, Jack Greenberg discusses discrimination under international law largely from the perspective of the US civil rights since many norms, especially those relating to discrimination on grounds of sex or religion, are still in an inchoate form, a situation which, according to Meron, ‘is not drastically different from the situation that existed in the United States some thirty years ago’. Ibid. 9. See also ibid. 13. In c­ hapter 4, ‘Civil Rights’, Richard B. Lillich draws heavily on the institutional changes in the US that were made to increase the effectiveness of the procedures to protect rights. 33  Ibid. 13. 34  Theodor Meron, Human Rights Law-​Making in the United Nations: A Critique of Instruments and Process (Oxford University Press 1986); Meron, Internal Strife (n 4); and Theodor Meron, Human Rights and Humanitarian Norms as Customary Law (Oxford University Press 1989), respectively. In these works he examines how to improve the adoption of human rights, how to extend their coverage to situations of internal strife, and finally how to articulate a credible (universal) basis for human rights and humanitarian norms under customary international law. 35 Meron, Human Rights Law-​Making (n 34) 127. 36  Ibid. 126–​7 and 241–​3. 37  In this formative stage, writes Meron in 1986, the multiplicity of systems supervising human rights, as well as the existence of other complementary control mechanisms, might be necessary, but eventually the supervisory mechanisms should be reduced to a more limited number of organs in order to avoid conflicts in interpretation. Ibid. 126–​7 and 241–​3.

29

Humanization via Customary International Law

229

states should lead to a coherent body of international law instead of multiple systems with overlapping and conflicting norms. As a cure for the inchoate state of international law, Meron calls for more specific instruments, more professionalized law-​making, and above all, new procedural and institutional arrangements for centralized law-​making.38 But much like in the joint volume on human rights, the discussion in Meron’s personal works on the content of human rights draws heavily on American scholarship and jurisprudence. While defining the meaning of ‘equality’, for instance, Meron offers an account on how the term is understood in the US civil rights law, citing a number of US Supreme Court cases, such as the famous Brown v Board of Education. As to the question whether the Conventions on Racial Discrimination and Discrimination Against Women have obtained customary law status, Meron answers by referring to the views of the Foreign Relations Law of the United States.39 ‘One is left with the feeling,’ writes one reviewer, ‘that Meron’s very discussion—​informative though it is—​is more intended to show American lawyers how to plead when pressing a human rights case in American courts than to reveal much about international law.’40 Like many of his contemporaries at NYU, Meron threw himself into the mission of ‘popularizing international law’s renovated purposes’, as phrased by Samuel Moyn.41 The juristic sensibilities of the Manhattan School fit well in the political milieu in the twilight of the Cold War, paving the way for liberal legalism that started to flourish after the fall of the Berlin Wall at the crossroad of international humanitarian law, human rights, and international criminal law. What is remarkable about the project is how it builds upon essentially Western liberal values, reflecting the spirit of the American constitutional system. Yet it is presented as universal by, inter alia, calling for a sense of fraternity among academics around the world and promoting institutional reforms that could be used to supervise the application of the entire corpus of (universal) human rights: either you’re with us or against us. As states continue to disagree over the values of the international community, the telos of international law is projected in the work of international institutions and academia.

Humanization via Customary International Law In the ’90s, after finalizing his book Human Rights and Humanitarian Norms as Customary Law, Meron started to write increasingly about the formation of 38  In particular, Meron proposes for the establishment of a UN Human Rights Law Commission, a specialized human rights law-​making organ, which would be entrusted with the task of drafting major human rights instruments and thus progressively developing law instead of just codifying it. Ibid.  284–​5. 39  Ibid. 11–​17 and 54. 40  Martti Koskenniemi, ‘The Pull of the Mainstream’ (1990) 88 Michigan Law Review 1946, 1951. See also Bruno Simma and Philip Alston, ‘Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988) 12 The Australian Year Book of International Law 82, 94, where the authors notice ‘a remarkable correlation between the norms identified as customary rules, and the range of rights which has been incorporated into the U.S. Bill of Rights’. 41  Samuel Moyn, The Last Utopia (Harvard University Press 2010) 207.

230

230

Meron and the Humanization of International Law

customary international law, and in particular, the role of international institutions in developing it. In two almost identical articles published in 1994 (the other in American Journal of International Law and the other in Israel Yearbook on Human Rights), he celebrates the establishment of the first ‘truly international’ criminal tribunal for the former Yugoslavia, noting that it might have an opportunity to develop customary law by interpreting its Statute’s provisions on the subject matter jurisdiction of the Tribunal, in particular Article 3 which introduces an open-​ended list of violations of the laws or customs of war.42 Foreshadowing the Tribunal’s upcoming decision in Tadić, Meron deplores what appears to him as an obsolete and artificial distinction between internal and international armed conflicts and accounts for the recent ‘movement toward the international criminalization of the offenses under common Article 3 of the Geneva Conventions’.43 While actively engaged in writing on the subject, Meron also assisted the prosecutor of the ICTY, Justice Richard Goldstone, with the jurisdictional aspects of the Tadić case. In July 1995, just three months before the prominent decision in Tadić, Meron published yet another article where he continued to promote the extension of individual criminality to internal conflicts.44 As it turned out, the Appeals Chamber of the ICTY, presided over by Antonio Cassese, broadened the Tribunal’s subject-​matter jurisdiction to non-​international armed conflicts precisely by extending the scope of Article 3 of the ICTY Statute to encompass common Article 3 of the Geneva Conventions, thus bolstering the violations enshrined in common Article 3 with individual criminal responsibility. Remarkably, the Tribunal tied its revolutionary reading of customary international law to a perceived paradigm shift in international law: A State-​sovereignty-​oriented approach has been gradually supplanted by a human-​being-​ oriented approach . . . It follows that in the area of armed conflict the distinction between interstate wars and civil wars is losing its value as far as human beings are concerned . . . If international law, while of course duly safeguarding the legitimate interests of States, must gradually turn to the protection of human beings, it is only natural that the aforementioned dichotomy should gradually lose its weight.45

Shortly after the decision, Meron celebrated Tadić as an ‘important contribution to the evolution of customary law’, noting that it ‘demonstrates the renewed vitality and potential of customary international law in developing humanitarian law

42  Theodor Meron, ‘War Crimes in Yugoslavia and the Development of International Law’ (1994) 88 American Journal of International Law 78; Theodor Meron, ‘The Normative Impact on International Law of the International Tribunal for the Former Yugoslavia’ (1994) 24 Israel Yearbook on Human Rights 163. 43  Meron, ‘War Crimes in Yugoslavia’ (n 42) 82. At the time this was a bold suggestion: Common Article 3 sets out the minimum standards applicable in all armed conflicts, including non-​international conflicts, but it makes no reference to individual criminal liability. 44 Theodor Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89 American Journal of International Law 554. 45  Prosecutor v Tadić, IT-​94-​1-​AR72, Appeals Chamber Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 97 (emphasis added).

231

Humanization via Customary International Law

231

for internal armed conflicts’.46 Yet he took issue with the Chamber’s assessment of customary law which he found to be relatively loose, given the scarce amount of evidentiary practice cited. While consenting that the emphasis on opinio juris might be justified in areas such as human rights and humanitarian law where ‘supporting practice’ is scarce, Meron nonetheless criticized the Tribunal for not making greater efforts to strengthen its substantive claims with material evidence.47 But his critique of the Tribunal’s methodical approach reveals some important inconsistencies in his own claims. While asserting that customary rules of human rights and humanitarian law do not necessarily come to life through actual practice of states—​in other words, sometimes these rules exist independently of what sates do—​he also maintained that supporting practice might nevertheless reinforce already existing rules. As an inevitable result, any interpretation of actual practice tends to be biased in favour of the presupposed norm. Since the existence of the rule is verified prior to the assessment of practice, the latter is projected through the norm that determines what counts as obedience and what as violation, thus filtering the relevant from the non-​relevant data. Consequently, state practice can evince respect for or be in violation of a new emerging rule, but there is hardly any room for an interpretation that the practice in question would be indicative of the recognition of a contrary rule; because the existence of the rule is presupposed, contrary practice is more likely to fall into the category of exception to (ie violation of ) the rule.48 Yet, despite his criticism, Meron found the Tribunal’s conclusion legally correct, not because it would be based on a careful assessment of relevant evidence but because it aligned with the direction of the evolution.49 Having earlier strongly advocated for treating the conflict in ex-​Yugoslavia as an international one—​a strategy which would have facilitated much easier prosecution of Duško Tadić50—​Meron nevertheless ended up praising the Tribunal’s decision to examine the scope of individual criminal liability in internal armed conflicts because this allows the Tribunal to

46  Theodor Meron, ‘The Continuing Role of Custom in the Formation of International Humanitarian Law’ (1996) 90 American Journal of International Law 238, 239, 244. 47  ‘The Tribunal formally adhered to the traditional twin requirements (practice and opinio juris) for the formation of customary international law. Yet in effect it weighed statements both as evidence of practice and as articulation of opinio juris, which in the formation of humanitarian and human rights law is cardinal. . . . Its methodology was thus akin more to that applied in the human rights field than in other areas of international law. In both human rights and humanitarian law, emphasis on opinio juris helps to compensate for scarcity of supporting practice. In terminology, however, the Tribunal follows the law of war tradition of speaking of custom even when this requires stretching the traditional meaning of customary law.’ Ibid. 239–​40. 48  See, in particular, ibid. 240. For a par excellence example in the jurisprudence of the ICJ, see Nicaragua v USA (n 7). 49  ‘Most observers will support the rationale and goals of the discussion of customary law in Tadić. Most, including this writer, will believe that the Tribunal’s final conclusions are legally correct. I agree that, as a matter of law, some important Hague rules already apply to noninternational armed conflicts and that, as a matter of policy, most, perhaps all Hague rules should be applicable mutatis mutandis. The direction of the evolution is clear.’ Meron, ‘The Continuing Role of Custom’ (n 46) 242–​3 (fnn omitted). 50  See, in particular, Meron, ‘International Criminalization’ (n 44), 559. See also Meron, ‘War Crimes in Yugoslavia’ (n 42); and Meron, ‘Normative Impact’ (n 42).

23

232

Meron and the Humanization of International Law

develop humanitarian law towards a desirable goal.51 Thus it appears that Meron is willing to accept deviations from methodical rigour in instances where the resulting interpretation would serve to humanize law. And this is where the evolutionary argument kicks in: instead of describing the humanization of humanitarian law as an established fact, Meron turns to invoke it as an ideal we should adhere to.52 This sort of balancing between the fact and the ideal is not only characteristic to Meron, but an antinomy inherent in the structure of international legal argument. While references to sociological facts endow law with objective determinacy, the idealistic argument is used to insert normativity into claims of law, thus enhancing the legitimacy of law.53 For Meron, the most efficient way to concretize the important, yet sometimes regrettably ‘soft’ norms of human rights and humanitarian law is to back them up with sound theoretical basis. This is reflected in his call for methodical rigour in the interpretation of customary law.54 In this regard, he praises the ICTY for taking an ‘essentially conservative and traditional approach’ to the identification of customary law. By carefully assessing both elements of customary law (state practice and opinio juris), so the argument runs, the Tribunal has respected the fundamental principle of nullum crimen sine lege.55 Implying his dissatisfaction with the modern approach to customary law in the context of international criminal law, Meron finds the principle of legality to be irreconcilable with too progressive or methodically loose interpretations.56 Yet, he is willing to give in for a relatively informal assessment of customary law in instances where the practice of states appears counterintuitive: ‘laborious inquiry’ is required only when the criminality of a given conduct has not been obvious.57 Accordingly, the requirements of the principle of legality can be met through either ‘methodological conservatism’ or ‘outcome conservatism’.58 In cases where we simply know what the right answer is there is no need to be scientific: After all, customary humanitarian law for the most part prohibits acts that everyone would assume to be criminal anyway.59

So much for methods. It seems convenient that Meron has, throughout the latter part of his career, concentrated on advocating what he terms as the growing importance of customary law in the formation of the laws of war. It is precisely within the 51  According to Meron, the decision was unnecessary for establishing the criminal liability of Tadić but should nevertheless be embraced as an ‘enlightened analysis of customary law’. Theodor Meron, ‘Is International Law Moving Towards Criminalization?’ (1998) 9 European Journal of International Law 18, 26. See also Theodor Meron, ‘Cassese’s Tadić and the Law of Non-​International Armed Conflicts’ in L.C. Vohrah et al (eds), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (Kluwer Law International 2003). 52  Meron, ‘Humanization’ (n 4) 262. 53  The classic critique is, of course, Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press 2005). 54  See, in particular, Meron, Humanitarian Norms as Customary Law (n 34). 55  Theodor Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99 AJIL 817, 821. 56 Ibid. 824–​ 6. See also his criticism towards the dissenting opinions of Judges Hunt and Shahabuddeen in Prosecutor v. Hadžihasanović et al., IT-​01-​47-​AR72, Appeals Chamber Decision on Interlocutory Appeal Challenging Jurisdiction in Relation to Command Responsibility, 16 July 2003. 57  Meron, ‘Revival’ (n 55) 822 and 831. 58  Ibid.  822–​3. 59  Ibid. 821.

23

Politics of Liberal Universalism

233

process of custom formation—​a process that effectively blurs the line between interpretation and law-​making60—​where his humanizing mission gains most ground. This is because Meron’s custom comes with a pulse. It is no more constricted to the will of states or subject to political power play, but an entity with its own predetermined goal, strangely alive and capable of evolving on its own. Its content is dictated by opinio juris, which reflects not the will of states but that of the international community—​whoever its representative may be—​and hence may sometimes be in contradistinction with what states actually do.61 Indeed, for Meron law-​making through diplomatic conferences where states defend their self-​interests is cumbersome and ineffective since it often results in generally acceptable texts that reflect the parameters of political consensus. And since such traditional forms of law-​making often fall short on adopting ‘more enlightened provisions’, the task of unveiling the hidden content of (customary) international law eventually falls on international institutions.62

Politics of Liberal Universalism As we all know, Tadić became one of the landmark cases of the ICTY. Celebrated as well as criticized for its creativity, the decision certainly revolutionized the enforcement scheme of the Geneva Conventions. But whether we see this change as progressive development of law or abuse of judicial powers depends largely on the broader narrative in which we situate the decision. For it appears that Tadić was the point of merger not only for human rights and humanitarian law but also for the self-​interest of the powerful West and international law. As Allison Danner notes, in Tadić the ICTY effectively endorsed ‘the positions taken by powerful countries—​ particularly the United States—​in the negotiations of the 1949 and 1974-​77 Geneva Conventions’, while leaving the developing countries on the losers’ bench.63 Though this might be considered coincidental, it nevertheless leaves us with a feeling of unease—​not least because later developments, such as the Prosecutor’s decision not to even investigate the 1999 NATO bombings of Serbia, effectively labelled the ICTY an instrument of the West. What then are we to make of this humanization project? No doubt the human rights movement has done a great deal of good, and perhaps Tadić represents one of its central achievements. But one cannot help pondering whether the universalizing 60  A fine example of how lawyers often fail to distinguish between the two is offered by Monica Hakimi, ‘Custom’s Method and Process:  Lessons from Humanitarian Law’ in Curtis Bradley (ed), Custom’s Future: International Law in a Changing World (Cambridge University Press 2016). 61  Indeed, Meron notes that often ‘on a subject of such great humanitarian importance, the practice of states lags behind opinio juris’. Meron, ‘International Criminalization’ (n 44) 577. But this certainly begs the question. Unless we are willing to detach opinio juris completely from the will of states, we must draw on states’ behaviour to make any presumptions about their common will. 62  Ibid. 555. See also Theodor Meron, ‘Rape as a Crime under International Humanitarian Law’ (1993) 87 American Journal of International Law 424. 63  Allison M. Danner, ‘When Courts Make Law: How the International Criminal Tribunals Recast the Laws of War’ (2006) 59 Vanderbilt Law Review 1, 45.

234

234

Meron and the Humanization of International Law

language of rights merely conceals social antagonism beneath a teleology of progress. Should we stop thinking in terms of winners and losers whenever a possibility of widening the scope of international human rights, humanitarian, or criminal law presents itself? And should we not be worried that the liberal West always stands as the trailblazer of international criminal justice while simultaneously remaining outside its jurisdictional scope? Indeed, Meron’s occasional references to the gradual development of common law imply a strong conviction to the domestic law analogy, which easily creates a sense that the development of international law runs parallel to, albeit few steps behind, the American constitutional system.64 In this regard his evolutionary take on international law, combined with a sharp distinction between law and politics, is crucial. Even in times when social reality does not seem to become more humane, law continues to develop. For Meron, the progress lies in the proliferation of rules, not in the actual obedience to those rules: The normative progress in humanization brings into sharp relief the contrast between the normative framework and the harsh, often barbaric reality of the battlefield.65

There is no doubt that the project of humanization is essentially liberal. The progress in law is largely understood to lie in the triumph of the individual over the collective and law over politics. But by insisting on the universal nature of the project Meron successfully rejects the possibility of several—​sometimes parallel, yet fundamentally competing—​projects under the same rubric. In order to both purify the notion of humanity from any ideological connotations and yet insist on its normative pull, he alternates between depicting humanization of law as an established fact and ideal. On the one hand, he describes humanization as an inevitable course of progress which is manifested in the growing number of rules covering warfare, a force of nature that continues to triumph over the ‘barbaric reality of the battlefield’. On the other hand, he promotes humanization as a force of good, reminding us that it is our duty to stand against the barbaric reality in times when it threatens to take over. All perceived shortcomings or defeats of international law are attributed to factors purportedly external to the project—​that is, politics. Accordingly, the liberal notion of humanity becomes an interpretative device, a lens through which the complex realities of social life are neatly assorted into the categories of progress and decline. Everything that aligns with progress counts as legally meaningful practice whereas all that disarrays the legal order falls outside the scope of law and counts as political power play. Thus ‘humanity’ becomes woven into the law, with the inconspicuous consequence of merging liberalism with the presupposed progress of the international legal order: in order to be on the side of law (and progress), one must be liberal. This argumentative strategy does not only de-​politicize liberalism but it also veils the possible shortcomings or internal contradictions of the liberal project itself. By way of associating liberalism with progress, the humanizing project prioritizes one 64  See n 16.

65  Meron, ‘Humanization’ (n 4) 276.

235

A Methodological Postscript

235

political agenda over others without discussing the basic presumptions underlying the project. It is this aspect of the humanization of law—​its tendency to mystify and deny politics—​what makes it such a meaningless, even dangerous concept. As Jean d’Aspremont suggest, it might be that the prevention of any discourse about values ‘is precisely the goal of all those who adopt, like constitutionalist and liberals, a Groatian understanding of international law based on global values’.66 It has been Meron’s life project to create a credible theoretical basis for the rules of international human rights and humanitarian law—​and eventually all international law. But as every portrait that is painted with feeling is a portrait of the artist, not of the sitter, so is every theory a reflection of its author’s deepest convictions, ambitions, and fears. Indeed, the more the project of humanization is subjected to critical scrutiny the more it starts to resemble a non-​theory, an occasional attempt to make the weaker argument appear stronger by using emotionally persuasive language. It stands in sharp contradistinction to Meron’s insistence on methodical rigour in the identification of customary international law. But to assert that Meron has at times been self-​contradictory is merely to point out that, ultimately, we all are—​there is no escape from this. On the verge of losing faith in our ability to distinguish right from wrong we find solace in theory and method, for they appear to relieve us from the pain of decision making. Yet, when fully convinced what the right outcome would be, we are ready to discard theories and methods out of the window altogether. Nowhere is this ambivalence manifested as clearly as in the work of an international criminal judge, for he is not entrusted with the task of merely applying the law, but rather with the more complex and demanding task of doing justice under the law. No doubt this is a source of anxiety, but perhaps one we should embrace. For it seems almost impossible to do international law without some teleological commitment, ‘some sense that one is working not only to coordinate the activities of states but for the good of humanity itself ’.67 Yet we cannot justify such a commitment by reference to legal materials themselves: meaning does not simply ‘emerge’ from legal texts and practices. As Meron himself writes: ‘there is no question that what we write and when we write can only be explained by our own life experiences’.68

A Methodological Postscript All the world’s a stage, and all the men and women merely players. Watching international law take its course through personal struggles is like watching a flock of pigeons flying around a market square with no predetermined course, with all their twists and turns and sudden changes of direction. No one is in charge and everyone is. Any attempt to explain or draw definite causal links inevitably falls 66  Jean d’Aspremont, ‘The Foundations of the International Legal Order’ (2007) 18 Finnish Yearbook of International Law 219, 234. 67 Martti Koskenniemi, ‘Law, Teleology and International Relations:  An Essay in Counterdisciplinarity’ (2012) 26(1) International Relations 3, 5. 68  Meron, ‘A Life of Learning’ (n 4) 1.

236

236

Meron and the Humanization of International Law

victim to exaggeration, oversimplification, and reductionism. Theodor Meron, a great Shakespeare enthusiast, would probably agree. Despite his breathtaking and seemingly single-​minded journey from a child inmate in a Nazi labour camp to the President of the ICTY, Meron is ‘reluctant to view [his] academic journey as one that has taken [him] along a single path to a single goal’.69 Recollecting this journey, Meron is also taciturn about any contributions he may have had to the development of international law. This is more than modesty speaking. It is hardly an overstatement to say that this man has become one of the leading figures of international criminal justice. But to say exactly where and to what extent his work has changed the course of international criminal law seems impossible. All we can do is to describe: here is the individual, this is what we know about him, and here are some of his works that appear to draw an uncanny connection with his personal life experiences and certain developments in international law.70 But all historical accounts, even those that attempt to be purely descriptive, necessarily build upon numerous causal presuppositions: what the historian finds important about the object of his study, what he chooses to tell about a person and his surroundings, how he envisions all possible ways of connecting the micro to the macro—​the story of an international lawyer to the story of international law as a whole. And so on. This work started off as an effort to shed light on Meron’s disposition towards Western liberalism through his life story as well as to analyse the humanization thesis as an argumentative strategy by which Meron converted the liberal project into legal doctrine. But in the course of writing, I found it increasingly difficult to identify those causal relations I initially had in mind. How much could I draw on, say, Meron’s Jewish background, his tragic experiences during the Second World War, or the apparent Lauterpachtian tinge in his writings?71 Could I use Meron’s personal story to explain a certain disposition towards American liberalism in his works?72 Or perhaps I should explain the exportation of domestic norms as a built-​in feature of liberalism, a system that is founded upon the idea of rights and due process and which actively seeks to enforce those standards universally.73 Either way, I would find myself arranging facts so that they supported my hypothesis. This does not mean that we should never engage ourselves in historical explanation. But we must be ready to point to the reasons for, as well as the limits posed by, our methodical choices. 69  Ibid. 14. 70  For an insightful apology for description as a mode of critique, see Orford, ‘Description’ (n 17). 71  For what I term as the ‘Lauterpachtian tinge’, see Koskenniemi, Gentle Civilizer (n 1) 361–​9. For an important contribution on the linkage between international law and Judaism, see Reut Yael Paz, A Gateway Between a Distant God and a Cruel World: The Contribution of Jewish German-​Speaking Scholars to International Law (Martinus Nijhoff 2012). 72  But even Meron’s Americanism is open to question. Far from committing himself to American chauvinism, Meron openly criticizes the country for double standards and poor implementation of human rights and humanitarian law treaties in several articles. Theodor Meron, ‘From Nuremberg to The Hague’ (1995) 149 Military Law Review 107, 112; Meron, ‘The Continuing Role of Custom’ (n 46). 73  Gary J. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton University Press 2000) 16–​26 and 280.

237

13 Histories of the Jewish ‘Collaborator’: Exile, Not Guilt Mark Drumbl

The state of Israel was established in 1948. Four hundred and seventy thousand Holocaust survivors came to in Israel between the late 1940s and 1950s; these arrivistes comprised one-​quarter of the nation’s population.1 These migrations mapped onto, and in turn catalysed, political ferment in Israel. In addition to intense debate between the right and the left about the political identity of the new nation, public debate in Israel boiled with concerns as to how to integrate the new immigrants, eulogized those who had resisted Nazism, and expressed vexation with those Jews—​ seen as feckless—​who ‘failed’ to struggle sufficiently in order to avoid their fate (in particular, the Judenräte) and were taken as ‘sheep to the slaughter’.2 Within this frame, the Jewish ‘collaborator’—​kapos, ghetto police, and those who negotiated with Nazis—​were seen as particularly contested characters:  so much so that the Knesset enacted criminal legislation (the Nazi and Nazi Collaborators Punishment Law) in 1950 to ‘cleanse’ them from Israel. This legislation embodied many political goals. It also channelled the hunger of victims—​victims of the acts of collaborators, victims of the violent acts of other victims—​for justice and opened an official space for them to tell their stories. This chapter discusses two proceedings. First, the Siegel trial (actually, there were four trials, but the main one was in the Israeli District Court brought under the Nazi and Nazi Collaborators Punishment Law); and, second, the Kastner trial (a criminal libel suit the state of Israel initiated on Kastner’s behalf against a journalist who had accused him of collaboration, though Kastner ended up as the de facto accused). Putting collaborators on trial gets me thinking of two sorts of histories. The first is the microhistory of the victim-​perpetrator, the violent acts, and attendant questions of responsibility. This is the history of what happened and why and who now owes what to whom. The second history is much more aspirational in nature and collective in form. It is the history of remembrance, celebration, and commemoration.

1 Hanna Yablonka, ‘The Development of Holocaust Consciousness in Israel:  The Nuremberg, Kapos, Kastner, and Eichmann Trials’ (Fall 2003) 8(3) Israel Studies 1 , 9. 2  Ibid. 5. Hannah Arendt was among those who criticized the Judenräte along these lines. Histories of the Jewish ‘Collaborator’: Exile, Not Guilt. Mark Drumbl. © Mark Drumbl, 2019. Published 2019 by Oxford University Press.

238

238

Histories of the Jewish ‘Collaborator’

What to recall? What to discredit? Here, judicial proceedings that implicate collaborators functionalize banishment, exile, and sculpt collective memory. These trials serve to pollinate a body politic, to define state narratives, and to presentiate the past. Collaborator trials in the new state of Israel promoted memories of heroism and sacrifice in the Holocaust, and exiled memories of negotiation and compromise. Ironically, however, heroism and sacrifice may have saved no-​one, or only few, while some individuals indeed were saved through negotiation and compromise. My bottom line is that when it comes to establishing microhistories, and assessing responsibility, recrimination, blame, or exoneration, trials fare poorly when they place victim-​perpetrators in the dock. My prior work on the Israeli Kapo trials,3 to which this current chapter adds, leads me in this direction. When it comes to microhistories, accounts other than juridical ones—​literary accounts, for example, or in the case of Siegel informal community proceedings—​lead to richer, more nuanced, and more vivacious content. On the other hand, these very same trials, in particular the Kastner trial, suggest that juridical accounts serve important didactic roles as engines to purify the past, project what to remember, and identify what to neglect. Here trials serve as tools of collective memory. To be sure, the content of these memories may soften or harden through time, or may mutate into something different altogether, but in the case of the intersection of the Israeli courts with Jewish collaborators these macrohistories constitute a judicial work product that, in turn, fed into a deeply contested political space. Trials hosted these political controversies and validated certain perspectives. In this regard, this chapter hopes to contribute to admittedly heavily traversed conversations about what sorts of histories that trials can construct4—​matters of capacity and reach—​although to do so within the vexed, and far less frequented, context of the starkly compromised ‘collaborator.’

Kastner: A Libel Trial and the Defence of the ‘Truth’ Rudolf Israel Kastner (Rezsö Kasztner) was a Jewish-​Hungarian journalist and lawyer. He was born in 1906 in Kolozsvár, Austria-​Hungary, into a local community of 15,000 Jews. As of 1918, this city became Cluj-​Napoca (Romania). The city was ‘returned’ to Hungary in 1940, then once again restored to Romania in 1947. Kaster’s father Yitzhak was a merchant; his mother Helen ran the family store.5

3  Mark A. Drumbl, ‘Victims who Victimise’ (2016) 4(2) London Review of International Law 217–​ 46. In this article I consider the writings of Primo Levi, Viktor Frankl, Ka-​Tzetnik, and Imre Kertész, which I juxtapose with the Israeli Kapo trials in terms of their abilities to recount the role of Kapos and ghetto police. 4  R.J. Evans, ‘History, Memory, and the Law: The Historian as Expert Witness’ (2002) 41 History and Theory 326–​45; S. Cohen, ‘State Crimes of Previous Regimes: Knowledge, Accountability, and the Policing of the Past’ (1995) 20 Law & Social Inquiry 7–​50; B. Sander, ‘Doing Justice to History: The Construction of Historical Narratives within International Criminal Courts’ (PhD Thesis, The Graduate Institute of International and Development Studies 2017). 5  Anna Porter, Kasztner’s Train (Constable & Robinson Ltd. 2007) 10.

239

Kastner: A Libel Trial and the Defence of the ‘Truth’

239

Kastner helped Jews escape from occupied Europe during the Holocaust. But along the way he ‘sold his soul to the devil’—​a euphemism for having collaborated with the Nazis—​as an Israeli trial judge starkly intoned.6 Kastner was assassinated in Tel Aviv in 1957. Kastner was among the leaders of Va’adat Ezrah Vehatzalah (the Budapest Aid and Rescue Committee). This agency smuggled Jewish refugees into Hungary and then out of Hungary after 19 March 1944, when the Nazis directly occupied the country. In the summer of 1944, 500,000 Hungarian Jews were sent to and murdered at Auschwitz. Adolf Eichmann was in charge of these deportations. Kastner negotiated with Eichmann to permit 1,684 Jews to leave for Switzerland rather than Auschwitz in exchange for money (roughly $1000.00 per person), gems, and gold. These Jews departed on what became known as the ‘Kastner train’. Kastner himself called it ‘Noah’s Ark’. Because most of the passengers could not raise the funds themselves, Kastner auctioned off 150 seats to the wealthiest in order to pay for the rest. The passengers, however, ‘included a disproportionate number of Kastner’s friends and relatives’.7 Eichmann ultimately broke his agreement, instead sending the passengers to Bergen-​Belsen. In the end, the passengers were saved by being transported to Switzerland in two contingents in August and December 1944. Separately, Kastner ‘also succeeded in transferring 15,000 Jews to Strassholl, near Vienna, thus saving their lives’.8 Kastner survived the Holocaust and the war. He moved to Israel, penniless, in late 1947. There he joined Mapai (the Labour party, the party of David Ben Gurion which exercised great influence at the time). Kastner ran unsuccessfully in two elections. He then became a spokesperson for the Israeli Ministry of Trade in 1952. Legal scholar Leora Bilsky notes that ‘there was a good chance he would be successful in the third elections, to be held in 1955’.9 In 1953 a ‘semi-​crank’10 and ‘unknown’11 seventy-​year-​old freelance writer, Malchiel Gruenwald (a Hungarian member of Ha-​Mizrachi, the religious wing of the Zionist movement), accused Kastner of having been a Nazi collaborator.12 6  ‘On Trial’, Time (11 July 1955). 7  Leora Bilsky, ‘Judging Evil in the Trial of Kastner’ (Spring 2001) 19(1) Law and History Review 117–​60, 119. See also David Luban, ‘A Man Lost in the Gray Zone’ (2001) 19(1) Law and History Review 161–​76, 164 (noting that the total included ‘almost four hundred from his hometown of Kluj, including several of his relatives’). 8  Yablonka, ‘The Development of Holocaust Consciousness in Israel’ (n 1) 12. Cf Luban, who similarly notes that Kastner continued to work to rescue Hungarian Jews via negotiation until ‘almost the end of the war’, and that he ‘succeeded in bartering money and coffee for eighteen thousand Hungarian Jews, two-​thirds of whom lived out the war in Vienna’). Luban, ‘A Man Lost in the Gray Zone’ (n 7) 166 (citation omitted). 9  Bilsky, ‘Judging Evil in the Trial of Kastner’ (n 7) 119. 10  Luban, ‘A Man Lost in the Gray Zone’ (n 7) 166. 11  Bilsky, ‘Judging Evil in the Trial of Kastner’ (n 7) 120. 12  Ibid. 118–​19 (spelling his name Malkhiel Gruenvald and describing him as motivated by ‘seeking to expose Kastner’s crimes’ and ‘hop[ing] to denounce Mapai, demand[ing] Kastner’s removal, and facilitat[ing] the appointment of a commission of inquiry to investigate the events that had led to the decimation of Hungary’s Jews’.)

240

240

Histories of the Jewish ‘Collaborator’

Gruenwald self-​published a newsletter (which he himself mimeographed) in which he exposed dealings between Kastner and Adolf Eichmann, and also between Kastner and an SS Officer named Kurt Becher (an envoy of Heinrich Himmler and assistant to Eichmann). After the war, Kastner apparently gave positive character references for Becher and two other SS officers which permitted Becher to avoid criminal prosecution for war crimes. Kastner testified on Becher’s behalf, and also supplied a loquacious supportive affidavit that ended up becoming admitted into evidence in the libel trial after Kastner testified that he had not in fact helped Becher. According to David Luban, Becher ‘had substantial blood on his hands,’ but ‘lived out his years as a “respectable” multimillionaire bon vivant, with a taste for horseback riding and adultery’.13 Gruenwald’s pamphlet accused Kastner of enabling the mass murder of Hungarian Jewry, partnering with Becher to steal Jewish assets, and then intervening to save the genocidal Becher from punishment. Gruenwald’s writing was hyperbolic: My dear friends, the stench of a carcass fills my nostrils! This will be the choicest funeral! Dr. Rudolph Kastner must be liquidated! For three years I have been waiting for the moment to unmask this careerist who grew fat on Hitler’s lootings and murders.14

The Israeli government told Kastner that he must either sue or resign his official post. They pressured a reluctant Kastner. So Kastner sued. The result was, as colourfully put by Luban, ‘surely the most improvident libel suit since Oscar Wilde’.15 The Israeli government intervened by charging Gruenwald with libel on Kastner’s behalf.16 The government claimed Gruenwald defamed Kastner. Kastner was represented at the trial by Haim Cohen, the Israeli attorney general.17 The motivation for this intervention was deeply political. The right wing in turn saw an opportunity to humiliate and bring down the government. An eighteen-​month long trial resulted. This trial heralded the beginning of the end for Kastner. Gruenwald was represented by Shmuel Tamir, a supporter of Menachem Begin’s opposition Herut Party and firm opponent of Ben Gurion. Tamir, a talented lawyer previously associated with right-​wing extremism, brilliantly reframed the criminal case against Gruenwald as a trial of Kastner, specifically Kastner’s political connections with the Labour party—​and Kastner as a Nazi collaborator and betrayer of Jews. Tamir argued that Gruenwald spoke the truth. This meant that his defence strategy was to prove Kastner’s collaboration as historical truth; along with how the process of collaboration ensured the survival of a selected few while deceiving hundreds of thousands of others to their deaths. Along the way, moreover, Tamir also turned the trial of Kastner into an interrogation of the Mapai party and a reassessment of 13  Luban, ‘A Man Lost in the Gray Zone’ (n 7) 166. 14  Cited in Yablonka, ‘The Development of Holocaust Consciousness in Israel’ (n 1) 13. 15  Luban, ‘A Man Lost in the Gray Zone’ (n 7) 166. 16  See generally Pnina Lahav, Judgment in Jerusalem: Chief Justice Simon Agranat and the Zionist Century (University of California Press 1997). 17  Bilsky, ‘Judging Evil in the Trial of Kastner’ (n 7) 120.

241

Kastner: A Libel Trial and the Defence of the ‘Truth’

241

Zionism, in particular, what sorts of strategies could best guard against ‘the future recurrence of similar catastrophes to the Jewish people’.18 The trial was ‘heated and controversial’.19 Tamir’s reframing success is reflected in the fact that proceedings against Gruenwald now effectively are known as the ‘Kastner trial’. Tamir extolled the heroism of the Warsaw Ghetto uprising and derided those who negotiated with the architects of the Final Solution. The court issued its ruling in July 1955.20 Judge Benjamin Halevy, who later became a Herut member of the Knesset, acquitted Gruenwald of three counts of libel. Judge Halevy, a German Jew who had left Germany before the rise of Nazism, sat as the sole judge. Libel was a minor criminal offence and hence the proceedings were assigned to a single judge. Judge Halevy however was faced with a painful issue, at the time of first impression, that he had to navigate alone: to wit, the ‘questionable’ behaviour of a Jewish leader rather than just that of ‘low-​level functionaries and policemen’.21 Judge Halevy appeared supportive of Kastner until the fateful moment when it became clear Kastner lied in court about his involvement in the Becher affidavit. Judge Halevy starkly held that Kastner had ‘sold his soul to the devil’. By failing to warn so many other Jews that their ‘resettlement’ was in fact deportation to the gas of Auschwitz, Judge Halevy concluded that Kastner had sacrificed the many for a chosen few: The temptation was great. Kastner was given the actual possibility of rescuing . . . 600 souls from the imminent Holocaust, with some chance of somewhat increasing their numbers by payout or further negotiations. Not just any 600 souls, but those he considered, for any reason, most prominent and suitable for rescue . . . . But timeo Danaos et dona ferentes (I fear the Greeks even when they bring gifts). . . . The success of the rescue agreement depended until the last minute on the Nazi goodwill, and the last minute didn’t arrive until long after the end of the extermination of the Jews in the provincial towns.22

Judge Halevy broke his judgment into three sections: ‘Preparation to the Temptation’, ‘The Temptation’, and ‘The Dependence of K. on Eichmann’. Judge Halevy’s incorporation of stories—​Faust, for example, and the Trojan Horse—​helped in ‘attributing responsibility’ judgment but also contributed to the ponderousness of his judgment.23 Throughout, Judge Halevy characterized Kastner’s negotiation as an attempt to save a handful of Jews dear to him in exchange for permitting the eliminationist structure to destroy so many more and, moreover, for those many never to actually know what their fate would be until it was far too late. According to Bilsky:

18  Ibid. 121. 19  Ibid. 122. 20  Cr.C. (Jm) 124/​53, Attorney General v Gruenwald, 44 P.M. (1965) 3-​241 (Jerusalem Peace Court) (translated by Bilsky). 21  Bilsky, ‘Judging Evil in the Trial of Kastner’ (n 7) 121. 22  Quoted in Akiva Orr, ‘The Kastner Case, Jerusalem, 1955’ in Israel: Politics, Myths and Identity Crisis (Pluto Press 1994) 90–​1. 23  See generally Bilsky, ‘Judging Evil in the Trial of Kastner’ (n 7) 122–​8.

24

242

Histories of the Jewish ‘Collaborator’

The judge produced a moralistic narrative, which divided the world into clear and distinct categories of satanic evil and saintly goodness. Kastner was presented as the personification of evil, a selfish opportunist who sold out his community to the Nazis.24

Tom Segev casts the Kastner trial judgment as ‘one of the most heartless in the history of Israel, perhaps the most heartless ever’.25 Later in his life, Judge Halevy remarked that he ‘regretted having added this unfortunate paragraph’—​the iconic paragraph about the devil and Kastner’s responsiveness to Greeks bearing gifts—​to the judgment.26 In response, Kastner resigned his governmental position—​the one he had sought to retain by initiating the legal complaint in the first place. The libel judgment turned into a political debacle and tawdry spectacle with wide ripple effects. Gruenwald’s ‘acquittal’ became Kastner’s ‘conviction’. After the scalding trial judgment, Kastner drifted into isolation. He lived with a loneliness that was ‘blacker than night, darker than hell’.27 His wife did not leave their house. Their daughter was ostracized in school and in her neighbourhood.28 Kastner became despised and vilified. Just after midnight on 4 March 1957, Kastner was shot by Ze’ev Eckstein.29 Kastner died twelve days later of his injuries.30 Turned in by a double-​agent, Eckstein, along with two others were prosecuted and given life sentences, but were pardoned after seven years. Kastner’s family was asked by high-​level officials to pardon the killers. They agreed. Eckstein, who grew up in the region, knew nothing first-​hand of what life was like for Jews in Nazi occupied Europe. In January 1958, the Supreme Court of Israel overturned most of the 1955 judgment that had been entered ‘against’ Kastner. Kastner had appealed, and the appeal continued after his murder. The Supreme Court ruled that the lower court had ‘erred seriously’.31 The Supreme Court noted that, like some of the pronouncements that infused the forty-​something Kapo trials conducted around that time, Kastner’s moral conduct was better left for history to decide. But by then it was too late to make amends for him in this life on earth. Five judges were appointed to Kastner’s appeal, which was rendered posthumously, rather than the three judges who usually sit on an appeal.32 Judge Shimon Agranat, who authored the lengthiest majority decision at the Supreme Court, held that Kastner was motivated by the sole purpose of saving Hungary’s Jews as a whole, that is, the largest possible number under the circumstances.33 Judge Agranat 24  Ibid. 141. 25  Tom Segev, The Seventh Million (Henry Holt and Company 1991) 282. 26  Bilsky, ‘Judging Evil in the Trial of Kastner’ (n 7) 124 (citations omitted). 27  ‘On Trial’, Time (11 July 1955). 28  Anna Porter, Kasztner’s Train (Constable & Robinson Ltd 2007) 29. 29  In Gaylen Ross’ 2008 documentary Killing Kasztner, which features an interview with Eckstein and his meeting with Kastner’s daughter, Eckstein claims that his gun jammed initially and that another shooter killed Kastner. Eckstein claims he was mentally ‘poisoned’ by other right-​wing extremists. 30 Porter, Kasztner’s Train (n 28) 405. 31  ‘Exoneration of Dr. Kastner’, Time (27 January 1958). 32  Bilsky, ‘Judging Evil in the Trial of Kastner’ (n 7) 121 fn 6. 33  Akiva Orr, Israel: Politics, Myths and Identity Crisis (Pluto Press 1994) 109–​10.

243

Kastner: A Libel Trial and the Defence of the ‘Truth’

243

identified this motive as consistent with the moral duty of rescue which applied to Kastner as a leader of the Relief and Rescue Committee in Budapest. According to Judge Agranat, Kastner negotiated with the Nazis to achieve these goals. Kastner considered the duty of rescue all that he could do; Kastner felt he could not encourage resistance and he had to withhold information about what would happen at Auschwitz. Judge Agranat found this behaviour was plausible and reasonable in time and place. Judge Agranat chided Judge Halevy for not having put himself into Kastner’s shoes at the time, for not having appreciated the volatile and narrow context in which Kastner furiously had to work. Judge Agranat did not find moral fault with Kastner’s conduct, nor a causal connection between his conduct and facilitating the Holocaust. Nor did Judge Agranat cast this conduct as collaboration. In sum, Judge Agranat approached the matter very differently than Judge Halevy.34 As Bilsky neatly observes, Judge Agranat saw Kastner’s deal not as a contract (a Faustian bargain with the Devil to save some of the Prominenz), but as a concretization of an administrative process, of a duty to rescue, and of assessments of what is balanced and reasonable in the discharge of that duty.35 While Judge Halevy saw Kastner as a villain, Judge Agranat saw him as a victim. Either way, however, the judicial responsibility required a choice to be made among stylized antipodes as opposed to seeing Kastner as both criminal and victim. In this regard, Judge Agranat’s more contextual assessment, which Bilsky praises,36 reflects little more than the fact the criminal law requires an assessment (necessarily a partial one) to be made, and operationalized, with great consequences. Lost amid the labelling is the realty that Kastner perhaps can best be grasped as a ‘cipher’ (per David Luban)37 or simply as ‘strange’ (per Hannah Arendt).38 Judge Moshe Silberg dissented at the Supreme Court. Judge Silberg noted that the Nazis sought to avoid a revolt, like that which had taken place in the Warsaw ghetto, and wished for the extermination machinery to work smoothly.39 Hence, concealment of the ultimate fate was of primary importance. Judge Silberg held that in order to carry out a rescue plan for a few ‘Prominents’, Kastner fulfilled the Nazi goal and therefore expedited the work of exterminating the masses. It should be noted, however, that all five Supreme Court judges affirmed Judge Halevy’s verdict on the ‘criminal and perjurious way’ in which Kastner after the war had saved SS war criminal Becher.40 So the absolution was not absolute. Kastner, however, was indispensable to the construction of the macrohistory of who/​what to glorify in the Holocaust and who/​what to shame. His trial was a key element in this process. The judgment of the Supreme Court was given little attention. The proceedings against Kastner offered a public expiation of the ‘guilt of the victim’ syndrome. Kastner was forced to bear that burden, which led to his

34  Quaere whether the fact that Kastner was dead—​having been assassinated—​attenuated the potential consequences of vindicating him. 35  Bilsky, ‘Judging Evil in the Trial of Kastner’ (n 7) 150–​1. 36  Ibid. 155. 37  Luban, ‘A Man Lost in the Gray Zone’ (n 7) 162. 38  Hannah Arendt, Eichmann in Jerusalem (Viking 1963) 197. 39  Ben Hecht, Perfidy (Julian Messner, Inc.1961) 244–​6. 40  Ibid. 247, 276.

24

244

Histories of the Jewish ‘Collaborator’

cold-​blooded assassination. His trial debunked any value to the process of negotiating with the Nazis. Gaylen Ross’ 2008 documentary Killing Kaszter brings these macrohistories brilliantly to light. This film centres around a meeting between Zsuzsi, Kastner’s daughter (and her three daughters) and Eckstein. One of Kastner’s granddaughters puts it well, that is, that at the time Israel was not ready for narratives other than heroism and simply could not handle the prevalence of compromise. Hence, these realities were shamed by scapegoating Kastner and branding him the Israeli Quisling. Zsuzsi wryly remarks that Kastner’s victimization—​their victimization as a family—​was ‘done in Israel’. Zsuszi laments that Kastner’s basic absence in a museum about Hungarian Jewry, even in the displays about rescue in Budapest, signify how he ‘gets murdered over and over’. In another scene, the film visits a memorial that had been dedicated to Kastner: it is now overrun with dead brush and litter. Controversies about Kastner linger to this day in Israel. An attempt by Haifa municipality to name a street after Kastner prompted Tamir’s son to respond that Kastner was never exonerated and that he remained despicable in that he caused the murder or failure to escape from Hungary of close to half a million Jews. Killing Kaszter also excels in unpacking the loneliness of those who survived on the Kastner train, that is, how they were seen as tainted, marked with the sign of Cain, until very recently. In a poignant scene, the film documents the decision finally to present Kastner’s archive to Yad Vashem in 2007 and also dedicate a space to him and his rescue efforts there. The passage of time may to some degree help rehabilitate Kastner and his name but, still, his fate stands in palpable contrast to that of another Holocaust negotiator, the German Oskar Schindler, venerated in a critically panned but widely viewed Hollywood film. And Kastner’s rehabilitation, if any, is thinned by the reality, as the film portrays, that the name Kastner has faded from public awareness, a name that only the ‘old guys’ recall, in stark contrast to the name of Hannah Senesh, a young Hungarian Jewish poet turned paratrooper tortured and killed by the Nazis as part of an ill-​fated rescue effort, presented as the face of courage, resistance, sacrifice, and mettle. Ironically, Senesh’s name and her death figured as part of the Kastner trial, thereby emerging early on as a foil, and further propelling the Kastner trial as a vehicle through which to project the macrohistory of how to remember, what to erase, and what to recall about the victims—​the deserving died as fighters, even if saving no-​one, the pathetic negotiated fecklessly, even if saving some.

Siegel: Accused of Collaboration in Multiple Venues Julius Siegel was born in 1895.41 He volunteered for service in the Austrian army in 1914, in which he served as an officer. Siegel involved himself in the Zionist

41  Rivka Brot, ‘Julius Siegel: A Kapo in Four (Judicial) Acts’ (2011) 25 Dapim: Studies on the Shoah 65, 76.

245

Siegel: Accused of Collaboration in Multiple Venues

245

Organization in Silesia. He married a woman from the Polish city of Bedzin, to where he moved, rather than sticking with his initial plan at the time to resettle in Palestine.42 Siegel was active in various functions during the Second World War. As part of the local Judenrat, he mobilized Jews for forced labour in the Polish city of Bedzin after it had fallen into German hands. He served an ‘elder’ role in forced labour camps in Germany. The Nazis then re-​deployed him to Bedzin to work as a foreman in a tailoring workshop in which thousands of Jews sewed uniforms for the German army.43 Siegel was transported to Auschwitz after the final liquidation of the Bedzin ghetto in August 1943.44 There he held a ‘desk job’ in a cobbler’s workshop. Siegel was forced into a death march to Mauthausen. He survived. After Mauthausen’s liberation, Siegel migrated to Italy in August 1945. Siegel’s ‘judicial saga’ began in Padua, when he was identified while assisting in the organization of a camp for Jews. Siegel was indicted in several separate instances for his ‘deeds against other Jews’.45 He was indicted in 1946 in the public court of Jewish refugees in Italy (Cremone and Milan); in Israel in 1949; and then twice further in Israel under the Nazi and Nazi Collaborators Punishment Law: the first time in 1952 in the Magistrate’s Court and the second time in 1953 in the District Court.46 The District Court judgment in Siegel’s case was not published in the official court record.47 That said, a ‘bulging file’ contains plenty of details which scholar Rivka Brot has unpacked with care, subtlety, and detail. Brot begins with the earlier proceedings brought against Siegel in Italian community court, which she presents as akin to a ‘social court’.48 Brot reports that community court condemned Siegel’s activities ‘as being criminal and harmful to the general Jewish community’, it prohibited him from receiving any kind of public office in Jewish life, and it would make a copy of the judgment available to all interested institutions in Italy.49 Siegel was marginalized, in one sense, but then not, in another sense, in that he subsequently managed to reach Israel. Once there, however, he faced another rather different set of proceedings. The 1950 Nazi and Nazi Collaborators (Punishment) Law (the original title of the legislation was the ‘Act against Jewish War Criminals’) was intended to purify the immigrant arrivistes in Israel.50 Roughly forty cases are estimated to have been 42  Ibid. 76. 43  Ibid. 77. 44 Ibid. 45  Ibid. 66. 46  Ibid. The proceedings are filed as: CrimC. (TA) 3727/​51, Attorney General vs. Siegel (1952) (unpublished) and CrimCase (TA) 475/​52, Attorney General vs. Siegel (1953) (unpublished). 47  Brot, ‘Julius Siegel (n 41) 119. 48  Ibid. 78. Brot contrasts these proceedings with the ones undertaken in the Israeli District Court, and maps both sets of proceedings onto the social norm of the ‘halakhic-​legal category of din moser, Law of Informer . . . based on Jewish religious law, [which] concerns those guilty of betraying their fellow Jews by informing on them to gentile authorities.’ Ibid. 66–​7. 49  Ibid. 95. 50  O. Ben-​Naftali and Y. Tuval, ‘Punishing International Crimes Committed by the Persecuted: The Kapo Trials in Israel (1950s–​1960s)’ (2006) 4 Journal of International Criminal Justice 129, 141, 144, 147 (noting that ‘the Law had as its primary target Jewish collaborators, who were themselves persecuted persons’ and that it was ‘primarily designed to realize, indeed, to constitute a community of “pure victims” ’ and to ‘cleans[e]‌the Jewish community in Israel of Jewish traitors’).

246

246

Histories of the Jewish ‘Collaborator’

brought. Insofar as there were no Nazis in Israel at the time, the purpose of the law was to target Jewish Holocaust survivors suspected of collaboration. The only German Nazi tried under this law was Adolf Eichmann. John Demjanjuk, a Ukrainian-​born concentration camp guard SS volunteer who had been captured by the Germans as a prisoner-​of-​war, also was tried under this law in the late 1980s.51 Demjanjuk was prosecuted following his deportation to Israel from the US (where he had emigrated and worked in the car industry). The dénouement of the Demjanjuk case proved an ‘embarrassment’ to Israel’s legal system; the Nazi and Nazi Collaborators (Punishment) Law has since remained unused.52 The Israeli Justice Minister presented the Nazi and Nazi Collaborators (Punishment) Law to the first Knesset as follows: We may safely assume that Nazi criminals . . . will not venture to Israel, but the law also applies to those who implemented the Nazis’ will, and unfortunately some of them may be in our midst . . . Hopefully the proposed law will contribute to cleansing the air among the survivors who have immigrated to Eretz Israel.53

The Law included an array of offences. The major offences, which entailed a mandatory death sentence, were crimes against the Jewish people, crimes against humanity, and war crimes. The legislation proscribed five other offences: crimes against persecuted persons, offences in places of confinement, delivering persecuted persons to enemy administration, blackmailing persecuted persons, and membership in an enemy organization. These latter offences did not trigger the death penalty. Only one of the Jewish defendants was ever found guilty of a major offence. No Jewish defendant was charged with crimes against the Jewish people.54 The crime of ‘offenses in places of confinement’ (Article 4(a) of the legislation) was specifically designed to deal with Kapo actions in ghettos and concentration camps that fell short of major crimes (this charge figured prominently in the Siegel trial).55 The Law did not formally distinguish between the Nazis and their collaborators, even when collaborators were persecuted persons. Its quest for condemnation, finitude, and clarity effectively constructed the persecuted Jew as a Nazi. The Law thereby dispelled any ‘grey zone’. Authorities conducted approximately forty prosecutions, including that against Siegel. The legislator’s unwillingness to legally distinguish Nazis from persecuted 51  Demjanjuk was ultimately acquitted in Israel on charges of having been a guard at Treblinka. In 2011 he was tried and convicted in Germany as an accessory to mass murder as a guard at Sobibór. He appealed. He died during the appeal process. Hence, his conviction was never validated. The legal theories deployed to try Demjanjuk in Germany have inspired other subsequent prosecutions of former concentration camp guards and officials. For his part, Demjanjuk argued that he was like a Jewish Kapo—​that he should be seen as a victim injured by the Nazis. 52  M.J. Bazyler and J.Y. Scheppach, ‘The Strange and Curious History of the Law Used to Prosecute Adolf Eichmann’ (2012) 34 Loyola of Los Angeles International and Comparative Law Review 417, 418, 461 (‘Though it remains officially on the books, the law is a dead letter’). 53  Statement of Pinhas Rosen, cited in Yablonka, ‘The Development of Holocaust Consciousness in Israel (n 1) 11. 54 Ben-​ Naftali and Tuval, ‘Punishing International Crimes Committed by the Persecuted’ (n 50) 153. 55  Ibid. 136.

247

Siegel: Accused of Collaboration in Multiple Venues

247

collaborators proved too crude. The criminal law flailed in its attempt to conceptualize Kapo violence. Law lacked the vocabulary or finesse; the courtroom was a poor conduit. Many of the records of the Kapo proceedings have been sealed at the behest of the families of the accused (for seventy years as of the time of the judgment). Records of other proceedings were destroyed in a flood. Documentation nonetheless exists regarding twenty-​three of the Kapo indictments: nine of these ended up in acquittals following a trial, fourteen in convictions.56 Acquittals proved as unfulfilling as convictions. Siegel was indicted in 1951. He appeared in Tel Aviv Magistrate’s Court. The Magistrate’s Court ruled that sufficient evidence had been produced of the crime of ‘delivering up a persecuted person to an enemy administration’ (Article 5 of the Law) and ‘assault in a place of confinement’ (Article 4(a)(6)). The indictment therefore advanced to the Tel Aviv District Court. Brot reports that the specific accusations under Article 5 involved Siegel’s allegedly being in charge of the workshop in Bedzin; and the two Article 4(a)(6) charges concerned assaults in a camp and in Bedzin.57 The trial began in March 1953. Much of the testimony took the form of hearsay and generalized accounts of life in the camps and ghettos and under the Judenrat. While admissible in Italian community court, this evidence interfaced poorly with the strictures mandated by the rules of evidence that contour formal criminal proceedings. The Siegel District Court trial reveals how the criminal law’s predilection for microscopic truths (direct statements by the witnesses about their own experiences) may thwart collective recounting of experiences in which a witness may not have been directly implicated. While assuredly sensible from the perspective of the ‘rules’ of evidence, this outcome may sap the proceedings’ phenomenological expository value in the case of microhistories. Siegel’s trial additionally exemplifies how the rigidities of the criminal law compel certain conduct on the part of courtroom actors. The Prosecution, for example, ‘portrayed Siegel as a rational actor who chose to collaborate with the Germans of his own volition and who thus freely chose to do harm to other Jews’.58 The Prosecution underscored, and amplified, Siegel’s apparent autonomy and ability to reject any assignment given to him. It disclaimed the salience of the fact that, like all Jews at the time, he was ‘slated for extermination’.59 In response, Siegel predictably inflated his purported subordinate status, that he ‘bore no responsibility’, that he ‘was subject to the whims of his German superior . . . a notorious drunkard’.60 Siegel also, paradoxically as well as predictably, presented himself as doing what he could to protect Jews from Germans, and in another common refrain among defendants, intimated that any orders he gave were intended to stave off the Germans from inflicting an even greater evil.61 Defence witnesses in fact asserted that Siegel never ‘raised a hand 56  I. Levin, Kapo on Allenby Street (Yad Ben Tzvi & Moreshet Publications 2015). 57  Brot, ‘Julius Siegel (n 41) 98. 58  Ibid. 99. 59 Ibid. 60  Ibid. 111. 61  I have elsewhere explored how former Kapos circulate similar arguments. See Mark A. Drumbl, ‘The Kapo on Film: Tragic Perpetrators and Imperfect Victims’, https://​papers.ssrn.com/​sol3/​papers. cfm?abstract_​id=2879032 (discussing the 2000 documentary ‘Kapo,’ which features similar justifications voiced by Magda and Frances, two former Kapos; and also the 2014 stage-​play ‘Kapo in Jerusalem’, in which a fictional character, Bruno (modelled on a real-​life Kapo) also thereby explains his use of violence against fellow Jewish inmates under his watch).

248

248

Histories of the Jewish ‘Collaborator’

against anyone’, whereas the Prosecution witnesses spoke of how he assaulted Jews. Defence witnesses also spoke of Siegel’s minor status and roles. Even if he had hit Jews, ‘he employed only the minimum amount of violence needed to protect the Jews under his charge from the Germans’.62 One defence witness, without testifying about Siegel personally, affirmed that: ‘It was preferable that a Jew browbeat a worker instead of the Germans, in order to preempt a beating from the German’.63 Brot observes that the Prosecution opted to ‘demonize’ Siegel.64 The Prosecution and Prosecution witnesses (with some exceptions)65 emphasized his selfishness and his choice to behave cruelly towards fellow Jews. Tensions thereby arose between describing ‘juridical reality and . . . describ[ing] how things really were’.66 Brot notes: Since it addressed individual responsibility rather than the general circumstances of communal life, the Nazis and Nazi Collaborators (Punishment) Law cannot comprehend a situation in which social and ethical mores are turned on their head, and where the use of violence by those in authority is the rule rather than the exception. Testimonies that endeavored to avoid the negative and positive extremes represented by the prosecution and defense respectively did not seek to establish or disprove guilt, but rather to lay out a general canvas, a portrait of life, in which the relations between the community and Jewish office holders were embedded.67

Judge Max Kennet, sitting alone in the District Court, delivered the verdict. The judgment itself was short—​three and a half pages. Judge Kennet acquitted Siegel of all the charges in the indictment (informing and causing grievous bodily injury), but convicted him of the lesser offence of simple assault. Judge Kennet sentenced Siegel to ten days’ imprisonment. This was among the shortest of all the sentences meted out under the Law (sentences averaged seventeen months for Jewish defendants convicted thereunder). Brot argues that the laconic nature of the verdict belies the ‘tenor found between the lines’: she reads the judgment as seething with anxieties, notably, between the judicial and historical narratives and ‘between the language of testimony and formal legal language’.68 In this regard, the Siegel judgment is indistinguishable from the other judgments of Jewish collaborators. Whether leading to conviction or acquittal, or a nominal sentence, the law overall proved discursively inadequate. The Siegel courtroom proceedings match the gnarly and awkward outputs that

62  Brot, ‘Julius Siegel (n 41) 115. 63  Ibid. 117, citing defence witness Yehuda Feffer, direct examination, 89. 64  I have noted this tendency in other contexts where victim-​perpetrators are prosecuted for mass atrocity crimes. See, eg, Mark A. Drumbl, ‘A Former Child Soldier Prosecuted at the International Criminal Court’, https://​blog.oup.com/​2016/​09/​child-​soldier-​prosecuted-​icc-​law/​. 65  See Brot, ‘Julius Siegel (n 41) 103 (‘[S]‌ome prosecution witnesses did not toe the prosecution line, which sought to paint Siegel’s character and actions entirely black. It is not that these witnesses had Siegel’s best interests at heart, but rather than they were aware of the complexity of the situation of which they and Siegel himself had been part. They presented a figure that criminal justice has difficulty comprehending—​a victim who is also a perpetrator; a person who committed acts prohibited by the laws of enlightened states, but acts which acquire an entirely different meaning in the context of the ghetto and the camp.’) 66  Ibid. 105. 67  Ibid. 119. 68  Ibid. 120.

249

Siegel: Accused of Collaboration in Multiple Venues

249

I have elsewhere argued characterize other trials of Kapos, ghetto policemen, and collaborators.69 In a pattern similar to other Kapo trials, Judge Kennet had to apply the Law’s frame of criminality to the facts as adduced in the proceedings. This means, inter alia, determining that Siegel’s alleged acts occurred in a ‘place of confinement’: thus, were the barracks where Jews assembled before ‘work’, the tailor shop, and the mess room where they ate lunch ‘places of confinement’? Judge Kennet found not. Once again, in a pattern that replicates itself in other trials conducted under the Law, the ‘proper legal approach obliterates historical reality [ . . . thereby] demonstrate[ing] the dissonance between one-​dimensional legal categories and actual, complex events that the law does not, and perhaps cannot, comprehend’.70 Neither wholly evil, nor wholly coerced, nor wholly principled, Siegel shattered the unflinching requirements of the criminal law that yearn for a finding of guilty or innocent. When it came to making a categorical determination, a task he was professionally obligated to fulfil, Judge Kennet underscored Siegel as a man of principle, as one who sought to promote the good of his people. Judge Kennet gestured towards Siegel’s decision to come to Israel rather than elsewhere as demonstrating Siegel’s perception of his prior conduct as justified.71 And in order to achieve these results, Judge Kennet depicted some of the prosecution witnesses as unreliable, inventive, and in one case even motivated by ongoing Israeli politics.72 This move to discredit is intriguing in light of the highly political nature of the Kastner trial, which followed soon thereafter, in which contemporary political allegiances informed the palette of the entire proceedings. Discrediting witnesses, notwithstanding all they had endured, was possible since much of the prosecution testimony took the form of hearsay. On the other hand, in the Italian community courts, adducing evidence about the totality of the wartime experience was easier. Testimonies there focused on Siegel’s moral character and his general actions. This was possible, according to Brot, because the evidentiary rules were far more relaxed. Criminal proceedings against Siegel in the Israeli District Court were hamstrung by the criminal law’s interrogative focus on the autonomy and free will of the defendant. The judges had to place complex conduct within this sparseness. In the end, then, as Brot elegantly concludes: The outcome was a verdict that strained to comprehend the defendant’s complex character, an amalgam of victim and free agent; a man who employed violence against his subordinates, but arguably only to protect them from far more serious harm at the hands of the Germans.73

Once again, however, the Siegel trial (notwithstanding the lenient penalty) along with other Kapo trials helped ease the sensibilities of the Israeli public. Even though, unlike Kastner, Siegel was seen more as a victim, he was still nothing to be proud of, and the trial served to vet these emotions. The scapegoating of collaborators served as a transition to the Eichmann trial, in which anxieties over compromise and 69  See generally Drumbl, ‘Victims who Victimise’ (n 3). 70  Brot, ‘Julius Siegel’ (n 41) 121. 71  Judgment, 2. 72  Brot, ‘Julius Siegel’ (n 41) 122. 73  Ibid. 124.

250

250

Histories of the Jewish ‘Collaborator’

negotiation became somewhat expiated and testimonies by Kapos finally became harnessed, without embarrassment, in order to convict Eichmann as the architect of the great cruelty of implicating the persecuted into the act of persecution. As Yablonka notes, the Kapo trials occurred ‘in the transition from a pre-​state community (Yishuv) to a sovereign state . . . and the building of Israel’s legal, economic, and security infrastructure’.74 Central to this process was a sort of deliberately crafted selective memory—​the embrace of Senesh, the ostracism of Kastner, lauding the Warsaw ghetto uprising. Once these memories gelled, and the collaborators disdained, then space opened for proceedings such as Eichmann’s that placed blame squarely on the shoulders of the principal perpetrators. Ironically, Judge Halevy, who bitterly condemned Kastner for the deployment of his agency, was also on the panel of judges that presided over the Eichmann trial, in which collaborators were presented as lacking in tangible agency.

Conclusion: Micro-​and Macrohistories The representational iconography, and the symbolic economy, of the criminal law—​whether on charges of collaboration or on charges that to allege collaboration constitutes libel—​is one of finality, disjuncture, and category: guilty or not guilty, persecuted or persecutor, abused or abuser, right or wrong, powerful or powerless. Criminal law hinges upon these binaries. Contrived as they are, they require judges to squeeze Kastner or Siegel into predetermined absolutes of villain or victim. Different judges may see things differently, as was the case with Kastner within the proceedings, or as between Judge Halevy and Judge Kennet with regard to Kastner and Siegel respectively. Yet, these judges are left with no choice other than to dither about the category into which to shoehorn the collaborator. The nature of the judicial process thereby inflates the importance of binary parsimony. The taxonomy of category becomes an imperative. These binaries nonetheless undermine international criminal law’s ability to speak in other than a crude register when it comes to microhistorically recounting ‘what happened’. Victims, after all, may be imperfect. Perpetrators may be tragic. The shapeshifting of humanity in times of violent cataclysm does not mix or play well with criminal law’s absolutes. The Siegel and Kastner proceedings consolidate my long-​standing sense of the lingering gaucheness of the criminal courtroom in relating the microhistories of tragic perpetrators and imperfect victims. The criminal law’s hunger for categories, its reliance on rules of evidence and admissibility, its celerity, its thirst for closure, and its need to impose punishment upon the convicted each conspire to confound the interstitiality of the persecuted who persecute others. Insofar as the industrialization of atrocity pivots heavily off the involvement of ordinary persons caught up

74  Yablonka, ‘The Development of Holocaust Consciousness in Israel’ (n 1) 2.

251

Conclusion: Micro- and Macrohistories

251

in extraordinary times—​including victims who become criminals then return once again as victims—​this project lends further support to Immi Tallgren’s insight that: The seemingly unambiguous notions of innocence and guilt create consoling patterns of causality in the chaos of intertwined problems of social, political, and economic deprivation surrounding the violence. Thereby international criminal law seems to make comprehensible the incomprehensible.75

The language of mental intent and agency, central to the criminal law, maps queasily upon the camps and ghettos under Nazi control. So, too, does the language of contract law—​a vocabulary of free will and bargaining—​that weaves into penal assessments of a ‘negotiator’s’—​such as Kastner’s—​liability for ‘rescuing’ or ‘saving’ a select few. For different yet cognate reasons, ‘[t]‌he figure of Siegel broke free of the legal discourse’.76 What then to do with these experiences? These microstories? Might it be best for certain actors, survivors, and perpetrators to lie beyond criminal law’s remit and, hence, to remain non-​justiciable? To pursue a juris silentium? These very same trials, however, served political functions of constructing collective memory and macrohistory: massaging what to celebrate, what to commemorate, which parts of the past to guide into the present and which parts to cut off and stigmatize. On this note, then, some interesting questions arise. Should the construction of broad historical narratives be taken explicitly as a goal of international criminal proceedings? As a justification? As a rationalization? If such macrohistorical goals are to be valued, can an international institution actually activate them? Or are these best left to courtrooms at the national level, connected to the state? And finally:  what to prioritize? If a juris silentium is pursued in cases of microhistories, then are the costs of that—​namely, trials stepping back, thereby withdrawing from the process of constructing macrohistories—​too much of a loss to bear? A middle way arises: it remains open for courtrooms to stay silent when it comes to microhistories yet be vocal when it comes to macrohistories.77

75  Immi Tallgren, ‘The Sensibility and Sense of International Criminal Law’ (2002) 13(3) European Journal of International Law 593. 76  Brot, ‘Julius Siegel’ (n 41) 121. 77  The author would like to extend his thanks to Kristin Mynes for her research assistance.

25

253

Index Abass, Ademola  41–​42 Achebe, Chinua  145–​46, 152, 157 affective transference  47–​51 Africa  apartheid  41–​42 atrocity narratives, exclusion from  146–​47, 151, 153, 154, 163–​65 Blue Books  146–​47, 149, 151, 154, 163, 165 Commission on Responsibility 1919  151, 153 independence struggle narratives  31–​34,  47–​48 justice for victims, unthinkableness of  153 porters, wartime recruitment of natives as  157–​58 war in, literary and film portrayals  145–​47, 149,  156–​57 World War I genocide  149–​50, 152, 155–​56 see also slavery African Queen, The (book/film)  145–​47, 149, 156,  164–​65 After, Nicole  124 aggression, crime of  atrocity, and  63–​65,  68–​69 conceptual development  42–​44, 60–​62, 63–​65, 67–​68, 109,  195–​96 genocide, and  66–​67, 96 judicial authority to address  67 Nuremburg trial, interpretation at  60, 93 Agranat, Shimon  242–​43 Ahmed, Sarah  30–​31 Akyeampong, Emmanuel  135–​36 Allar, Kimberley  110–​11, 113 Alston, Philip  228–​29 Altman, Ilya  212–​13 Alvarez, Jose E.  93 Amis, Kingsley  22 Amorosa, Paolo  220–​21,  223–​24 Amos, Jennifer  189–​91 Andrews, David R.  79 Anghie, Antony  130–​31 anti-​impunity see impunity, law of anti-​monuments  24, 27–​28,  29 anti-​semitism  62–​63 Aolain, Fionnuala Ni  97–​98 apartheid  41–​42 Arendt, Hannah  14–​16, 17, 20, 54, 60, 170, 237, 243 Armitage, David  4–​5 Armstrong, Paul  113–​14 Askin, Kelly D.  97–​98 atrocity, generally 

aggression, interpretation conflicts  63–​65,  68–​69 criminalizing, justifications for  24–​25 international criminal law, influences on  85 international scope, relevance of  68 interpretation of  10–​11,  136–​37 punishment, adequacy of  54 reparations  24–​26,  27 unprecedentedness of  13–​16 unprecedenting  17–​20 unthinkableness of  153 war to halt, legality of  68–​70 witnesses, role of  142–​43 atrocity narratives  Africa Blue Books  146–​47, 149, 151, 154, 163, 165 editing, suppression and destruction of  154–​56 exclusion of African atrocities from  146–​47, 149, 151, 153, 154, 163–​65 justification for breaches of law, as  148–​49 security threats, as  154–​55 white, colonial and Eurocentrist focus  156 Austen, Ralph  134–​35 Australia, war crimes trials  198 Bachmann, Klaus  150 Backer, Larry Cata  84 Bailyn, Bernard  139–​40 Bakhtin, Mikhail  33 Barbie, Klaus  18–​19 Barthes, Roland  7–​8,  162–​63 Bass, Gary  93–​94, 236 Bassiouni, M. Cherif  79, 81, 95, 147 Baucom, Ian  142–​43 Bazyler, M.J.  245–​46 Bederman, David  2–​3 Bedont, Barbara  97–​98 Behrenbeck, Sabine  102, 104–​5 Beijing Declaration on Women 1995  122–​23 Belgium, collaborator trials  206–​7 Bell, Derrick  186 Bell, George  22–​23 Bellagamba, Alice  136–​37 Bellot, Hugh  151 Ben-​Naftali, Orma  223–​24,  245–​46 Benton, Laura  176 Berkhoff, Karel  200–​1 Berman, Harold J.  207–​8 Bernard, Diane  77 Bethel, Leslie  172–​73 Bevernage, Berber  135–​36

254

254 Bilsky, Leora  239–​40,  241–​43 Binder, Guyora  141–​42 Binyavanga Wainana  146 biographies see life-​writing Blue Books, African  146–​47, 149, 151, 154 Bock, Gisela  125–​26 Boister, Neil  82 Boltanski, Christian  128 Bonaparte, Napoléon  17–​18 Bourtman, Ilya  191–​92 Brot, Rivka  244–​45, 247, 248–​49, 251 Brown, Daniel  118 Brownmiller, Susan  102 Bull, Malcolm  17–​18 Burds, Jeffrey  99 Bush, Jonathan A.  82 Butler, Judith  19–​20, 112, 126–​27 Cassiday, Julie A.  193–​94 Cavell, Edith  26–​29 Charlesworth, Hilary  122–​23 Chase, William  193–​94 China  206–​7 chivalry theory  127 Cienciala, Anna M.  203 civilians  civilian/combatant distinction  107 crimes against, law development  86–​87 gendered interpretation  105–​6 targeting  106–​7 Clarke, Kamari  7–​10 Cockram, G.M.  146–​47 Cohen, S.  238 Cold War  85–​86, 92,  93–​94 collaborator trials  Asian  206–​7 European  206–​7 generally  237–​38 Holocaust collaborators  238, 244, 250–​51 Jewish  9, 237, 238, 244, 250–​51 Julius Siegel, of  244, 250–​51 Rudolf Kastner, of  238, 250–​51 Soviet  191–​92, 203–​4, 207–​ 11, 213–​14,  218–​19 collective effervescence  45, 48 collective feelings  33–​34 colonialism  historical narratives, white bias in  158–​59 liberation aggression, legality of  67 see also post-​colonialism Commission on the Responsibility of the Authors of the War 1919  15–​16, 63–​64 African atrocities, treatment of  151, 153 complementarity 74 Congress of Vienna 1818  18 Conrad, Joseph  145–​46, 157 Conrad, Sebastian  189 Conway, Martin  206–​7 Copelon, Rhonda  95–​96 core crimes  focus of law on  77–​78

Index interpretation  10–​11, 42, 61 Cornell, D.  157 counter-​histories  19–​20 countermonuments  27–​28 crimes against humanity  13, 41–​42, 43–​44 conceptual development  61–​62, 64–​65, 66–​67, 78, 86–​87, 96, 157–​58, 177–​78, 182–​83,  195–​96 deracialization  169–​70, 177–​78,  179 genocide, and  66, 91 ICC jurisdiction  43–​44,  187–​88 nexus requirement  62, 63, 64–​65, 66–​67 Nuremberg treatment  64–​65, 93 rape and sexual violence as  91 slavery, as  132–​33, 169–​70,  175–​76 crimes against peace  conceptual development  13, 60, 62, 63–​64, 85, 195, 196–​97 genocide, and  66–​67 limitations of  64–​65 Nuremberg treatment of  64–​65, 67, 93 criminal responsibility  individual vs. state  81, 195–​96, 229–​30 criminal trials, generally  historical function  9, 28 peacetime forgetting  20 purpose of  20–​21, 74–​75, 80 see also war crimes trials criminals  ideal perpetrators  9–​10 see also women perpetrators critical race theory  167–​68, 171–​72 Crowe, David M.  158–​59 Çubukçu, Ayça  15 cultural property, law of  27 customary international law  development, influences on  16, 222–​23,  228–​31 Danner, Allison M.  233 d’Aspremont, Jean  234–​35 De Rivera, J  33–​34 Declaration of the Rights of Man 1793  180–​81,  183 Delgado, Richard  175–​76 DeLillo, Don  16 Demjanjuk, John  245–​46 Democratic Republic of Congo  68 Denis, Juliette  191–​92 Desalegn, Hailemariam  187–​88 Descamps, Eduard  61 Dinstein, Yoram  227 Donnedieu de Vabres, Henri  83 Douglas, Lawrence  9–​11,  64–​65 Douzinas, Costas  187 Draft Code of Crimes Against the Peace and Security of Mankind (ILC)  18–​19, 39 Droop, Marie-​Luis  145–​46 drug trafficking  39–​40 Drumbl, Mark  8–​10, 24–​25, 126, 238, 247–​49

25

Index Du Bois, W.E.B.  153, 167–​68, 173, 187 Durban Declaration on Racism 2001  132 Durkheim, Emile  45, 48 Earl, Hilary  193–​94 Ebbinghaus, Angelika  125–​26 Eckstein, Ze’ev  242 Ehrenburg, Ilya  200–​1 Ehrenreich, Barbara  123 Eichmann, Adolf  14–​16, 17, 170, 245–​46,  249–​50 Einsatzgruppen trial  65 El Zeidy, M.M.  74 emotion  affective transference  47–​51 collective feelings  33–​34 emplotment  160–​61,  162 enemies  characteristics and position of  56–​57, 58–​59,  70 enemy of all mankind  58–​59, 68 enforced prostitution  91 Engle, Karen  72, 101 Epifanov, Aleksandr  191–​92, 199–​200,  216–​17 Esmeir, Samera  177, 179 Evans, R.J.  238 Exeler, Franziska  8–​9,  207–​8 expressivism  24–​25 Falk, Richard  223–​24 Felman, Shoshana  18–​19 feminism, generally  anti-​sexual violence focus  72 governance feminism  92 feminist anti-​impunity project  aims  95, 97, 108 civilians, gendered interpretation of  105–​6 contestability  92–​93 genocidal rape, and  95–​97 progress  72–​73,  92 rape, justifiability during war  107–​9 feminist failure narrative  background  91–​92 Berlin rapes  99–​100, 104, 105–​6 criticism of  101, 108 jus ad bellum/jus in bello applicability  92,  96–​98 masculine myth of war, and  101–​2, 125–​26 Nuremberg and Tokyo tribunals, influences of  97–​100 rape victims, silencing of  100, 102 scope  99–​100 feminist histories see women perpetrators; women’s histories Ferencz, Benjamin B.  85–​86 Filartiga v Peòa Irala  132–​33 Fitzpatrick, Sheila  211–​12 Fletcher, Laurel  137–​38 forced marriage  91 Forester, C.S.  145–​47, 149, 156, 164–​65

255

Foucault, Michael  18–​19 France, collaborator trials  206–​7 Franck, Thomas M.  223–​24 freedom, interpretation of  175–​76, 177, 178–​79,  180–​81 Frei, Norbert  197–​98 Freud, Sigmund  34 Friedman, Jonathan  198–​99 Frommer, Benjamin  206–​7 Fukuyama, Francis  123 Futamura, Madoka  189–​91 Gardam, Judith  123 Gathii, James Thuo  38–​39 Gavrilov, V.A.  205–​6 Gbagbo, Simone  113–​14 gender  civilians, gendered interpretation  105–​6 ICC, role of women in  122 masculine myth of war  101–​2, 125–​26 natural differences  111, 124–​25 gender histories  5–​6, 112 gender stereotypes  119, 128 care and protection of life, and  123 chivalry theory  127 Nazi Germany, in  121–​22, 125–​26 sexual dependences, and  124 women, expectations and assumptions  121–​23, 125–​26, 128–​29 women perpetrators  119, 121, 128–​29 Geneva Conventions 1949  229–​30, 233 Geneva Protocol 1924  61 genocide  African natives, in World War I  149–​50, 152,  155–​56 Armenian  152,  153–​54 conceptual development  15, 43–​44, 65–​66, 91,  96–​97 genocidal rape  91, 95–​97 histories of  155, 156 see also Holocaust Genocide Convention 1948  36, 39, 65–​67, 96 Genovese, Eugene  139–​40 George, Lloyd  14, 19 Germany  Africa, atrocities in  147, 149 Allied bombings of  106–​7 Berlin rapes  99–​100, 103, 104, 105–​6, 107 Nazi propaganda  145–​46 post-​war attitudes to war crimes  102–​5 women perpetrators of war crimes  117–​18 see also International Military Tribunal (Nuremberg) Gevers, Christopher  7–​10 Gewald, Jan-​Bart  154–​56 Gilroy, Paul  139 Ginsburgs, George  189–​91, 196–​97, 199–​200 global history  4–​5 Goldstein, Joshua  123

256

256 Gotunda, Neil  171–​72 Goyal, Yogita  139 Greenberg, Jack  227–​28 Greppi, Edoardo  81 Grese, Irma  118–​19 Griffin, Susan  123 Grinberg, Keila  184–​85 Gros, André  63–​64 Gross, Aeyal M.  223–​24 Grossmann, Atina  103, 104, 106–​7 Grotius, Hugo  57–​58, 176 group transference  33–​34,  47–​51 Gruenwald, Malchiel  239–​41, 242 Hague Convention on Law and Customs of War on Land 1899  61, 78, 195–​96 Haiti  153, 159, 184–​85 Hakimi, Monica  232–​33 Halevy, Benjamin  241–​43,  249–​50 Hall-​Martinez, Katherine  97–​98 Hallett, Nicole  95 Halley, Janet  95, 103, 108 Hammond, Dorothy  145–​46, 157 Hankey, Maurice  22, 23–​24 Harris, Cheryl  171, 178–​79, 183 Hartman, Saidiya  142–​43, 169, 179 Hartog, François  27, 28 Haslam, Emily  7–​10 Hayes, Niamh  100 heads of state, prosecution of  78 Heart of Darkness (book/film)  145–​46, 157 Hecht, Ben  243 Heckler, Cheryl  217–​18 Hedeler, Wladislaw  193–​94 Heineman, Elizabeth  103–​4,  106–​7 Henry, Nicola  97–​98, 100 Hetherington, Philippa  189–​91 Hilger, Andreas  191–​92,  205–​6 Hill, Barry  21–​22 Hirsch, Francine  189–​91,  195–​97 Hirszowicz, Lukasz  211–​12 historiographies, of international criminal law  anachronization of  76 approaches, generally  4, 7–​9, 220–​22 biographical studies, generally  220–​21 context  2–​3,  88–​89 criminal trials, role of  2–​3, 9, 77 doctrines, histories of  10–​11 exclusions and inclusions  1, 6, 8–​9, 87–​88, 89,  130–​31 features of  1–​4,  72–​73 form and content, role of  160 global histories  4–​5 influences of  87–​89 limitations of  72–​73, 76–​77, 88–​89, 221 literary artefacts, treatment as  159–​61 microhistorical studies, role of  220–​21, 251 organistic treatment of  161 peace vs. atrocity tribunals  85

Index revisiting, benefits of  159–​60 trends  12, 30, 72, 73 unprecedentedness of  12–​13 victim vs. criminal, attitudes to  9–​10, 73 see also atrocity narratives; humanization of international law; life-​writing; narratives of international law; public narratives of justice; slavery Hobbes, Thomas  55–​56, 57, 58 Hogg, Nicole  113–​14,  126–​27 Holocaust  Jewish collaborators  237–​38, 244 Julius Siegel, trial of  244, 250–​51 memorialization  12–​13, 24,  27–​28 Rudolf Kastner, trial of  238 Soviet trials, exclusion from  200–​1 unprecedentedness of  15 war crimes trials, tropism in  19 hostis humani generis  58–​59, 68,  132–​33 Huisman, Wim  82 human rights  civil rights, compared  227–​29 concept development  180–​83 humanitarian law, merger with  223–​24,  233–​34 race, interpretation of  167 reparations  24–​25 state sovereignty, and  73–​74 universalization thesis  227–​29 humanitarian intervention  justification for war, as  68–​71 humanity  human dignity, principle of  222–​23 international law development, influences on  221–​22, 234 vs. human, interpretation of  170, 175–​76, 177, 179, 183, 185, 187–​88 humanization of international law  customary international law, and  229 liberal universalism, and  233 limitations on  224 Meron’s theory  221, 226, 227 opinio juris, independence from state  232–​33 public conscience, agents of  222–​24 Teaching International Protection of Human Rights Conference 1980  227–​28 universalization thesis  227–​29 Hunt, Lynn  180–​81,  182–​83 Huntington, Samuel P.  223–​24 Huskey, Eugene  195–​96,  214–​15 Hussein, Saddam  85–​86 Huyse, Lucy  206–​7 Hwang, Dongyoun  206–​7 Ignatieff, Michael  68–​69 Iliffe, John  157–​58 impunity, law of  17–​18 anti-​anti-​impunity movement  21–​24,  45–​46

257

Index concept development  80 state responsibility, and  34–​35 see also feminist anti-​impunity project International Covenant on Civil and Political Rights 1966 (ICCPR)  39 International Covenant on Economic, Social, and Cultural Rights 1966 (ICESCR)  39 International Criminal Court  Ad Hoc Committee  40 aggression, crime of  42–​44, 67 establishment  36–​43 gender equality, and  122 impunity vs. punitiveness conflicts  23,  34–​35 inequalities of justice  42–​45 jurisdiction  38–​44, 67–​68, 80, 91 Kampala Amendments  42–​44 limitations of  16, 35, 42–​44, 45 public narratives of justice, role in  32, 34–​36,  42–​46 purpose  34–​35, 42–​43, 51, 85, 186 racism, and  186–​88 symbolism of  34–​35 international criminal law, generally  Cold War influences on  85–​86, 92, 93–​94 conduct, criminalization of  41–​42, 79 focus of  77–​79 historical development  36–​39, 74–​75, 79,  163–​64 humanitarian influences on  68–​71, 85–​86 institutionalization  41–​42, 77, 94, 222–​23,  229–​30 interpretation, challenges of  75–​77 lawful authority conflicts  23 legal method, interpretation  76 linear progression of  74, 75, 78, 161–​62 non-​international armed conflict, and  86 non-​punitive mechanisms  24–​26 organistic development of  161 purpose, historical development of  85 race neutrality, and  183 research trends  72, 76–​77 sovereign determination, and  57–​58 state sovereignty, and  73–​74 state vs. individual criminal responsibility  81,  195–​96 stigma, role of  36, 47–​48 temporal limitations on  41–​42, 75–​76 testimony, absence vs. presence  28 transnational element, role of  78–​81 Treaty of Versailles, importance of  147 unprecedents in  12–​13 victims, place in  137 World Wars I and II, influences of  36–​39 see also historiographies of criminal law international humanitarian law  human rights, merger with  223–​24, 233–​34 humanization of, Meron’s theory  221 institutionalization of  222–​23

257

rape and sexual violence prohibitions  98–​99,  107–​8 war, justifications for  68–​71 International Law Commission  aggravated state responsibility, debate on  83–​84 Draft Code of Crimes Against the Peace and Security of Mankind  18–​19, 39 International Military Tribunal (Nuremberg)  aggression, criminalization  60, 62, 67, 93, 109 atrocity, treatment of  60 background  37–​38, 91–​92,  195 conspiracy charge theory  59 crimes against humanity  64–​65, 93, 195 crimes against peace  64–​65, 67, 93, 195 criticism of  54, 80, 82–​83 feminist failure narrative, and  97–​99 individual vs. state responsibility  81–​83 international law development, influences on  41, 80, 81–​83, 162–​63 Jews, treatment of  63 jurisdiction of  64–​65, 195 London Charter  195, 198 prosecutions, scope of  197–​99 purpose of  59, 74–​75, 85, 109, 195 rape and sexual violence crimes  97–​100 rules of procedure  14 Sonderweg theory  59–​60 Soviet participation at  189–​92, 195–​96 Treaty of Versailles, influences of  147–​48 women indicted at  113–​14, 116–​17, 118, 124 women, selective use of evidence  100 see also Verbrecherstaat (Nazi criminal state) International Military Tribunal (Tokyo)  aggression, crimes of  64–​65 background  37–​38, 73, 74–​75, 91–​92, 189–​91,  197–​98 feminist failure narrative, and  97–​99 international law development, influences on  41, 81 medical-​related crimes, omission of  209 prosecutions, scope of  197–​98 rape and sexual violence crimes  91–​92,  97–​100 treason, politics of  193–​94 women, selective use of evidence  100 International Tribunal for Rwanda (ICTR)  crimes against humanity  86–​87 establishment  39–​40,  75 women indicted at  113–​14, 126–​27 International Tribunal for Yugoslavia (ICTY)  establishment  39–​40, 75, 93, 229–​30 feminist anti-​impunity project, and  92, 95 purpose  93–​94 rape, treatment of  99–​100 Tadić case  67–​68, 229–​32,  233–​34 war crimes, justiciability  67–​68 women indicted at  113–​14

258

258 IntLawGrls (blog)  116–​17 Israel 237 Nazi war criminals punishment law  245–​47 Jablow, Alta  145–​46, 157 Jackson, Robert  54, 63, 93 James, Edwin L.  200–​1, 217–​18 Japan  Australian war crimes trials  198 see also International Military Tribunal (Tokyo) Jardim, Tomaz  193–​94 Jaspers, Karl  12–​13, 55, 60 Jenkins, Richard  120 Jews  collaborator trials, generally  9, 237 war crimes trials, treatment of victims in  62–​63, 65 see also Holocaust Johnson, Walter  169–​70,  179 Johr, Barbara  99 Jones, Adam  39–​40 Jones, Jeffrey  191–​92 juris silentium 251 jurisdiction  conflicts of  80 International Criminal Court, of  38–​44, 67–​68,  80 slavery, and  176 universal jurisdiction  75, 80–​81 jus ad bellum (law of war)  feminist failure narrative, and  92, 96–​98 institutionalization 94 interpretation challenges  107–​8 political reasons for war, relevance of  105 jus in bello (law in war)  conduct criminalization, influences on  92–​93 interpretation challenges  107–​8 rape and sexual violence prosecution trends  90–​91 state vs. individual responsibility  94 supreme emergency exception  106–​7 justice  affective justice  52–​53 enemy, position of  56–​57 public conscience, agents of  222–​24 punishment, adequacy of  54 self-​defence, and  55–​57 Soviet, political influences on  192–​94, 213, 218–​19 see also public narratives of justice Kaiser, Claire P.  191–​92 Kaldor, Mary  93–​94 Kapenguria Six  31–​32 Kasasonova, E.L.  205–​6 Kastner, Rudolf  238, 250–​51 Keller, K.J.  150 Keller, Linda  26 Kellogg-​Briand Peace Pact 1928  61

Index Kelsen, Hans  56–​57, 79, 82 Kennedy, David  107–​8, 226 Kennedy, Duncan  106 Kennet, Max  248–​49, 250 Kenyatta, Jomo  31 Kenyatta, Uhuru  31–​34,  47–​49 Kerber, Linda  122–​23 Kerner, Miroslav  207–​8 Keyna  31–​34,  47–​49 Kinsella, Helen  105–​6 Kirchheimer, Otto  193–​94 Koch, Ilse  118–​19 Kochavi, Arieh, J.  195 Koller, David  161–​62 Kontorovich, Eugene  15–​16,  80–​81 Koonz, Claudia  125–​26 Koskenniemi, Martii  88, 220–​21, 226, 229, 232, 235 Kress, Claus  147–​48 Kudryashov, Sergey  191–​92 Kushner, Barak  197–​98,  206–​7 Lächert, Hildegard  117–​19 Lahav, Pnina  240 Lang, Andrew  220–​21 Laqueur, Thomas  46 Lawless, Michael  79 Lawrence, Charles R.  171–​72 Lawrence, Thomas  18 Lawrence, W.H.  200–​1 Lawson, Konrad M.  193–​94 Lebanon, Special Tribunal for  105 Lebedeva, Natal’ia S.  189–​91 Leben, C.  82 Lee, Hermione  220–​21 Lemkin, Raphael  65–​66, 155, 156 Lengyel, Olga  118 Lepore, Jill  220–​21 Lerner, Gerda  116 Levin, I.  246–​47 Lewis, Mark  195–​96 liberal universalism  233 Liebman, Stuart  99 life-​writing  220–​21 Lillich, Richard B.  227–​28 Lippmann, Walter  119–​20,  129 London Agreement 1945  38, 195, 198 Louverture, Toussaint  167 Lower, Wendy  101, 118–​19,  216–​17 Luban, David  223–​24, 239–​40, 243 Martens Clause, Hague Convention 1899  61, 78, 195–​96 McGlynn, Clare  95 MacGonagle, Elizabeth  135–​36 MacGregor, Neil  27–​28 MacKinnon, Catharine  95–​97 Maison, R.  82 Mälksoo, Lauri  195–​96 Mamdani, Mahmood  41, 187 Manela, Erez  189

259

Index Maresca, Louis G.  67–​68 maritime law  176–​77, 184 Marks, Susan  220–​21 Martinez, Jenny  139–​40, 168–​69, 173–​74, 175–​77,  186 Matthews, Heidi  8–​10 Maxwell, Leda  55 Mbizvo, Shamiso  35, 36, 45, 47 Mégret, Frédéric  7–​9, 10–​11, 26 Meierhenrich, Jens  193–​94 Melnyk, Oleksandr  191–​92 Melone, Mary Jo  116 memory  anti-​monuments  24, 27–​28,  29 collective memory  8–​9, 10–​11, 135 criminal trials, peacetime forgetting  20 history, relationship with  135 memory politics  135, 137 monuments  26–​29 slavery, remembering and forgetting  131–​32, 135, 171, 183 unremembering  18–​19 Meron, Theodor  221, 224 humanization of international law theory  7, 221, 227, 235 life and career  224, 235–​36 Tadić case, and  229–​32 Mertelsmann, Olaf  191–​92 metalegalism 21 Mettraux, Guénaël  189–​91 Mixed Commissions see slavery money laundering  39–​40 monuments  26–​29 anti-​monuments  24, 27–​28,  29 moralization, of slavery  180 Morgan, Ed  18–​19 Morris, Narrelle  198 Moyd, Michelle  153–​54, 158 Moyn, Samuel  228–​29 Mozokhin, Oleg  207–​8 Naimark, Norman M.  99 narratives of international law  emplotment  160–​61,  162 form and content, role of  159 literary artefacts, consideration as  159–​61 organistic treatment of  161 re-​narrating  164 un-​narrating  8–​9,  163–​64 see also atrocity narratives; public narratives of justice natural law of nations  57–​58 Nesiah, Vasuki  7–​9, 10–​11,  38–​39 nexus requirement  62, 63, 64–​65, 66–​67 Niarchos, Catherine N.  97 Nicaragua v USA (ICJ)  222–​23 Nietzsche, Friedrich  27 1984 (book)  20–​21 Nolan, Mary  101 non-​international armed conflict, law of  86, 230

259

non-​state actors, responsibility of  84 Norway, collaborator trials  206–​7 Nuclear Weapons ICJ Advisory Opinion  222–​23 nullum crimen sine lege principle  63–​64, 67 Nyiramasuhuko, Pauline  113–​14, 126 Oberheuser, Herta  118–​19, 124, 129 Ocampo, Luis  68 Odinkalu, Chidi Anselm  44 Orford, Anne  76, 138, 224 Orosz, Kenneth J.  145, 149 Orr, Akiva  241, 242–​43 Orwell, George  20–​21 Páez, D  33–​34 Paice, Edward  158 Pal, Radhabinod  21–​22, 23, 64–​65 Paris Peace Conference 1919  19, 36–​37, 60–​61 Paulus, Andreas L.  85–​86 Paz, Reut Yael  236 Peabody, Sue  184–​85 Peguy, Charles  28 Pella, Vespasian  61, 83, 195–​96 Peltonen, Aleksi  7–​8,  10–​11 Pendas, Devin O.  193–​94, 197–​98 Penter, Tanja  191–​92,  207–​8 Permanent Court of International Justice  37–​38 Pesek, Michael  157–​58 Peters, Anne  223–​24 Petkov, Nikola  23 Petrov, Nikita  191–​92 Philipose, Liz  96 Piccigallo, Philip R.  197–​98 Pickering, Michael  119–​20 Pikhoia, R.G.  203 piracy  75, 80, 184 Plavšić, Biljana  113–​14 Plummer Parker, Rachel  158–​59 Poincaré, Raymond  14, 19 Politics, Trials and Errors (book)  23–​24 Politis, Nicola  83 Pollak, Otto  127 Polunina, Valentyna  209 Pope, Alexander  14 Porter, Anna  238, 242 post-​colonialism  5–​6 affective transference  47–​48 independence struggle narratives  31–​34, 45 sham trials  33–​34 Prandy, Kenneth  120 precedent  atrocity as crime, establishment of  13–​14 international law, role in  12 see also unprecedents preemptive strikes  55–​56 Priemel, Kim  59 prisoners of war, repatriation  222–​23 Prosecutor v Tadić (ICTY)  67–​68, 229–​32, 233–​34

260

260 Prusin, Alexander Victor  191–​92, 199–​200, 207–​8,  212–​13 public narratives of justice  assumptions  130–​31 colonial independence narratives  31–​34, 45 counter-​narratives  46 ICC, influences on  32, 34–​36, 42–​46 Keyna, in  31–​34,  47–​49 sentimentalization, and  33, 45–​46, 47–​49,  52–​53 R v Jones 16 race  color line, interpretation  173–​74, 187 crimes against humanity, and  169–​70, 177–​78,  179 critical race theory  167–​68, 171–​72 depoliticization of  185 historical construction, as  174 humanization of international law, and  227–​28 juridification of  175, 185 racial capitalism  169, 172–​73, 174 rule of law, need for neutrality in  175–​76 slavery, deracialization of  169–​ 70, 171–​72,  175–​76 whiteness, privilege of  171, 173, 176–​77, 178–​79, 183–​84,  185 racism  Durban Declaration on  132 ICC, challenges for  186–​88 research bias, and  134 unconscious/invisible racism  171–​72, 176–​77, 178–​80,  183 Rahi-​Tamm, Aigi  191–​92 Raimondo, Fabián O.  223–​24 Ranciere, Jacques  184–​85 rape  Berlin rapes  99–​100, 103, 104, 105–​6, 107 degendering  95–​96,  103 feminist ant-​impunity project, and  108 feminist failure narrative, and  96–​98 genocidal rape  91, 95–​97 instrumentalization of  103–​4 international criminalization of  91, 95–​99,  106–​7 international humanitarian law, and  98–​99,  107–​8 Nuremberg and Tokyo tribunal treatment of  97–​100 public narratives  108 victims, silencing of  100, 102, 103–​4 re-​precedenting  24–​29 monuments  27–​28 Read, James M.  147, 148, 151, 152, 165 Rebut, Didier  77 Reemtsma, Jan Philipp  106 Renders, Hans  220–​21 reparations  24–​26,  27

Index Richards, Jeffrey  145–​46 Rogers, A.P.V.  198 Rose, Sonya O.  111 Rosen, Pinhas  246 Ross, Gaylen  242, 244 Rubenstein, Joshua  212–​13 rule of law  175–​76, 193–​94 Sagan, Ann  137–​38 Said, Edward  5–​6 Saldana, Quintiliano  83 Samson, Anne  158 Sander, B.  238 Sander, Helke  99 Sands, Philippe  220–​21 Sarti, Wendy A.  117–​18 Schabas, William  39, 66–​67, 84, 189–​91 Scheppach, Y.J.  245–​46 Schindler, Oskar  244 Schmidt, Ulf  198 Schmitt, Carl  54, 58–​59 Schulmeister-​André, Irina  189–​91,  196–​97 Schwarz, Gudrun  101–​2 Schwarzenberger, Georg  17–​18, 93 Schwelb, Egon  98–​99 Scott, David  140–​41 Scott, James Brown  223–​24 Scott, Joan  112, 129 Segev, Tom  242 Sellars, Kirsten  189–​91,  196–​97 Senesh, Hannah  244 sentimentalization of justice  33, 45–​46, 47–​49,  52–​53 sexual violence  depoliticization  96–​97 international criminalization of  90–​91, 95–​96,  98–​99 international humanitarian law, and  98–​99 Nuremberg and Tokyo tribunal treatment of  97–​100 Shany, Yuval  223–​24 Sharlet, Robert  195–​96 Shklar, Judith N.  189–​91, 193–​94 Siegel, Julius  244, 250–​51 Silvester, Jeremy  154–​56 Simberg, Mishe  243 Simma, Bruno  228–​29 Simonov, Konstantin  200–​1 Simpson, Gerry  2–​3, 8–​9, 18–​19, 24–​26, 130–​31, 150, 189–​91,  193–​94 Skouteris, Thomas  220–​21,  223–​24 slavery  10–​11 abolition  135–​36, 168–​70, 175–​77, 178, 179–​80, 181, 182–​85 Anti-​Slavery Committee  185–​86 contemporary politics, appropriation by  141–​42 crime against humanity, as  169–​70, 175–​76, 177–​78,  179

261

Index dehumanization  179–​81 deracialization  169–​70, 171–​72,  175–​76 freed slaves, legal status of  178, 179–​80,  183–​84 freedom/unfreedom, interpretation of  177,  178–​79 historiography inclusions and exclusions  8–​9, 131–​32, 137–​38, 143–​44,  169–​70 instrumentalization, avoiding  138 international criminal law, place in  7–​8, 132–​34, 137, 168–​69, 180 invisible racism, and  171–​72, 176–​77, 178–​80,  183 jurisdiction, interpretation of  176 knowledge of, bias in  134, 135–​36 legacies of  143–​44 maritime law, and  176–​77 Mixed Commissions  7–​8, 139–​40, 168–​69, 172–​74, 175–​79, 181–​82,  183–​85 moralization of  180 narratives of  139, 140–​42 remembering and forgetting practices  131–​32, 135, 171, 183 research trends  131, 134 scope and extent of  132 sexual slavery  91 slave resistance  139–​40, 141, 184–​85 support for  183–​84 victims, framing of  137 witnesses, role of  142–​43 Sloane, Robert D.  94 Slye, Ronald  36–​37,  38–​40 Solomon, Peter  195–​96 Sorokina, Marina  203 Soviet Union  atrocity, evidence of  192, 194–​95, 203, 209, 213–​14, 217–​18 Chernihiv trial  213–​17 collaborator trials  191–​92, 203–​4, 207–​11, 213–​14,  218–​19 international criminal law, doctrine of  195–​97,  198–​99 Jews, mention in trials  200 justice, political influences on  192–​94, 204–​5, 213,  218–​19 Kharkiv trial  197–​98, 200–​5,  217–​19 Krasnodar trial  203–​5, 205f,  218–​19 law, perceptions of  195–​96, 214–​15 Mar’ina-​Gorka trial  213–​14,  216–​17 Nuremberg, participation at  189–​92, 195–​96 permanent criminal court, views on  198–​99 post-​War justice, place in  192–​94 show trials  9, 20, 21, 193–​94, 200–​3,  216–​18 Soviet-​Nazi propaganda war  203 Tokyo, participation at  197–​98 war crimes prosecution decrees  199–​200

261

war crimes trials, generally  191–​93, 194–​95, 197, 205–​7, 208f,  218–​19 war crimes trials, publicity  201–​3, 204–​5, 209–​13,  218–​19 wartime rapes  107 Special Tribunal for Lebanon  105 Sperling, Carrie  113–​14 Stanko, Elizabeth  124 state  enemy, position of  56–​57 natural law of nations  57–​58 sentementalism of  55 sovereign, role of  56, 57 sovereignty, influences of  73–​74 survival, importance for  55–​56 Verbrecherstaat (Nazi criminal state)  55, 59–​60,  62–​63 state responsibility  aggravated state responsibility  83 impunity, and  81–​83 prisoners of war, repatriation  222–​23 state agents, criminal acts of  84 vs. individual responsibility  81, 93–​94, 195–​96,  229–​30 Steege, Paul  102, 103, 104–​5 Stefancic, Jean  175–​76 Steiner, George  28 Stephenson, Jill  121–​22 stereotyping  7–​8 definition  119–​20,  129 ideal victim/perpetrator  9–​10, 138 negative values, and  129 purpose of  119–​21 women perpetrators  119, 121, 129 see also gender stereotypes Stevens, Edmund  200–​3,  217–​18 stigmatization of justice  36, 47–​48 Strachey, James  187–​88 Struk, Janina  202–​3 sublime atrocity  14–​15 Sundquist, Eric  187 Surwillo, Lisa  169 Sweet, John Wood  134, 142–​43 Syria  9–​10 Tallgren, Immi  7–​10, 189–​91, 251 Tamir, Shmuel  240–​41 Tansill, Charles Callan  147–​48 Taylor, A.J.P.  60 Taylor, Telford  64–​65,  109 Tehlirian, Soghomon  61–​62 Teitel. Ruti G.  189–​91, 223–​24 terrorism 79 Tetrault, Mary Kay Thompson  110–​11, 112, 115, 116, 128 Thirith, Ieng  113–​14 Tompkins, Tamara L.  97 Totani, Yuma  193–​94,  197–​98 Trainin, Aron  195–​97

26

262 transatlantic slave trade see slavery transitional justice  24–​25 transnational element of crime  10–​11, 78–​81 treason  193–​94 see also collaboration Treaty of Munster 1648  18, 24 Treaty of Versailles 1919  37, 82, 85, 146–​47 African atrocities, exclusion of  151–​52, 163 importance and limitations of  147 Trainin, V.I.  60 Trouillot, Michel-​Ralph  153, 159 Truth and Reconciliation Commissions  28 Tuck, Richard  56, 57 Tuval, Y.  245–​46 Ueberschär, Gerd R.  202–​3 unfreedom 177 United Nations  39–​40 Universal Declaration of Human Rights 1948  23, 39 universal jurisdiction  75, 80–​81 unprecedents  12–​13 critical unprecedents  21–​24 Holocaust 15 past atrocity  17–​20 past trials  20–​21 precedent as bathos  13 re-​precedenting  24–​29 unprecedented atrocity  13–​16,  17–​20 unprecedentedness  13–​16 unprecedenting  12,  17–​21 Valiev, A. KH.  209 Valsiner, Jaan  33 Van Baar, Annika  82 Van Shaack, Beth  36–​37, 38–​40 Varadarajan, Latha  89 Verbrecherstaat (Nazi criminal state)  55, 59–​60,  62–​63 Vermeil, Edmond  59 victimicity  25–​26 victims  affective transference  47–​51 African, unthinkableness of justice for  153 historiographic portrayal of  9–​10, 73 ideal victim  9–​10, 138 international criminal law, place in  137 protection provisions  91 reparations  24–​26,  27 victimization of  238, 250–​51 witnesses, role of  142–​43 women, silencing of  99–​100 see also collaborators Victims Trust Fund  25–​26 Viertel, Pieter  157, 165–​66 Vietnam War  106 Voisin, Vanessa  191–​92 von Trotha, Lothar  149–​50 Vyshinskii, Andrei  195–​96, 198–​99,  214–​15

Index Walzer, Michael  69–​70,  107–​8 war  combatants, risks for  70–​71 depoliticization of  106 Hobbesian-​Grotian theory  56–​57,  58 humanitarian necessity, and  68–​71 institutionalization of  94 interpretations of  60–​61, 64 justifications for  56–​58,  68–​70 laws of humanity, and  61–​62 literary and film portrayals  145–​47, 149, 156–​57 masculine myth of  101–​2, 125–​26 recklessness in  70–​71 right to wage war  58, 93, 94 supreme emergency exception  106–​7 women, participation in  101–​2, 103–​4,  125 see also jus ad bellum; jus in bello; non-​international armed conflict war crimes, generally  anti-​anti-​impunity dissent  21–​24 conceptual development  19–​20, 43–​44, 85–​86 ICC jurisdiction  43–​44 international character of  67–​68 justiciability of  67–​68, 96 nullum crimen sine lege principle  63–​64, 67 rape and sexual violence as  91, 95–​96 retroactive law, and  63–​64, 67 treason, politics of  193–​94 waging of unsuccessful war as  23 see also aggression; crimes against humanity; crimes against peace; genocide war crimes trials, generally  absence of trials  24 customary international law, and  16 doctrines, interpretation histories  10–​11 Einsatzgruppen trial  65 failures of  91–​92 interwar years, during  61–​62 Jews, treatment of  62–​63 linear development  162 political influences on  192–​94 prosecution trends  62–​63 purpose, development  93–​94, 189 rule of law, compliance with  193–​94 scope and quantity of  189–​91 Soviet Nazi trials  61–​63 unprecedenting of  20–​21 see also International Military Tribunal (Nuremberg); International Military Tribunal (Tokyo); International Tribunal for Rwanda; International Tribunal for Yugoslavia; Soviet Union Warren, Christopher  75–​76 Weed, M.  67 Weheliye, Alexander  139–​40,  169–​70 Weiler, Joseph H.  83–​84

263

Index Weiner, Amir  191–​92 Weiss-​Wendt, Anton  189–​91,  198–​99 Welter, Barbara  121 Wetherall, Margaret  48, 50 White, Hayden  160–​62, 164 White Hunter Black Heart (book/​film)  157, 165–​66 White Noise (book)  16 Wilberforce, William  182–​84 Wilhelm II, Kaiser  17, 19–​20, 78, 147 Willhaus, Liesel  118–​19, 124 Williams, Eric  167–​68 witnesses  142–​43 Wollstonecraft, Mary  124 women perpetrators  crimes and offending rates  113 historical inclusion or exclusion  115–​16, 126–​27 indirect engagement  126–​27 influences of men on crimes  113, 123 Nazi Germany, in  121–​22, 125–​26 non-​women,  as  127 research  110–​11, 114, 115, 117, 128 stereotypes  119, 121, 123, 128–​29 war crimes trials, indictments at  113–​14, 116–​18, 124, 126

263

war, participation in  101–​2, 103–​4, 125 women’s histories  112–​13 exclusion and oppression, theories of  114–​15 women, silencing of  99–​100 Woolf, Virginia  123, 127 Yablonka, Hanna  237, 249–​50 Yavnai, Lisa  198 Young, James  24, 27–​28 Yugoslavia, Federal Republic of  conflict, jus in bello/jus ad bellum applicability  96–​98 NATO military action in Yugoslavia  68–​69 rape, tribunal treatment of  95–​97,  99–​100 see also International Tribunal for Yugoslavia (ICTY) Zacklin, Ralph  92 Zagorul’ko, M.M.  205–​6 Zanasi, Margherita  189 Zeidler, Manfred  191–​92, 209–​10,  213–​14 Zeuske, Michael  134 Zweig, Ronald W.  73, 82

264

265

26

267

268

269

270

271

27

273

274