Thank you to Robert Fine, to whom I owe a considerable debt, both personal and academic, for the help, inspiration, advice and support that he has given me over many years. He ought to be more generally recognised as one of the most profound contemporary social theorists. Everything good in this book has something to do with Robert. Chapter Two was written jointly with him. Thank you to Beverley Brown at GlassHouse. How much nicer to be found by a publisher than to find a publisher.
Her help and advice were much appreciated, and made this a better book; also to Sanjeevi Perera, for her detailed editing. Thank you to Alison Diduck for reading an early draft and giving me the confidence to finish it. Thank you to Stephan Feuchtwang who, as well as teaching me at City University, has subsequently been interested in my work and ideas, and has taken time to discuss and clarify them with me.
Thank you to David Seymour for his encouragement, help and friendship; Max Seymour too. Thanks are also due to Gillian Rose who taught me at Warwick while she was dying of cancer. It is not easy to fight for a cosmopolitan politics in Tel Aviv. Thank you to my mum and dad, Mirjam and Julian, and to my sisters, Deborah and Judy, for their support and for making me who I am. Thank you to Fella, Fischel, Rushka and Yidl, members of my family who survived the Holocaust and told their stories.
Thank you, above all, to Alexandra, my wife, for her warmth, energy and love.
Passar bra ihop
She has worked very hard so that I could write this book. David Hirsh March The ordinary and extraordinary Andrei Sawoniuk Ben-Zion Blustein: Holocaust memoir and legal testimony The evidence of the local witnesses. Sturm Abteilung stormtroopers founded in ; an elite formation of the Nazi party later to be eclipsed by the SS. Schutzstaffel protection squad; Hitlers bodyguards, Nazi party police and later the most racially pure elite guard of the Third Reich. Outside the building was a large, angry, noisy demonstration consisting mainly of Chileans, displaying hundreds of photographs of individuals who had been murdered by the Pinochet regime.
Law Against Genocide Cosmopolitan Trials (Criminology)
Augusto Pinochet was attending an appeal by the Kingdom of Belgium against the British Home Secretarys decision that, due to his poor health, the General was unfit to stand trial for crimes against humanity. Upstairs in the same building, judges were hearing the unsuccessful appeal of Andrei Sawoniuk against his conviction for the murder of Jews in Belorus during the Holocaust. And in Court 73 there was a gathering of Jews, historians, Nazis and journalists watching the Irving v Lipstadt libel trial.
In the Pinochet case the court confirmed the principle of universal jurisdiction for crimes against humanity and torture. In the Sawoniuk case the court upheld the conviction of a man for crimes committed as part of a genocide in another country. In the Irving case the court produced a long, closely argued judgment that placed the propaganda of David Irving outside what may be properly referred to as historiography.
On that sunny winters day in London, it felt as though something interesting was happening. On the same day, there were crimes against humanity trials being routinely heard by international courts in The Hague, in relation to ethnic cleansing in the former Yugoslavia, and in Arusha, in relation to the genocide in Rwanda. In recent years there have been trials, and campaigns for trials, in many countries that were occupied by the Nazis; also in Cambodia in relation to the genocide there; in South East Asia in relation to the organised mass rape of the so called comfort women by Japanese soldiers during the Second World War;1 and in East Timor in relation to the mass killings carried out by the Indonesian regime.
In the summer of , states agreed in Rome to set up an International Criminal Court, extending the ad hoc tribunals for the former Yugoslavia and Rwanda into a permanent institution. Slobodan Milosevic, the man who many held would never face justice at The Hague, is on trial.
Law Against Genocide: Cosmopolitan Trials (Criminology)
There is much darkness in the world; genocide, racist ethnic cleansing, torture, industrialised humiliation and the mass production of terror are commonplace. Those who perpetrate such crueltiesthe ideological, the greedy, the enraged victims of some previous injustice, the stupidly loyal, the sadistsmove stealthily in their self-created dusk. On reflection, perhaps the bright winter sunshine in London did not really work as a metaphor for the business that was going on in the court. The image of enduring brilliant light.
When the Japanese Prime Minister offered a letter of apology and monetary reparations to some survivors of the , comfort women, only six of them accepted the offer. Some of the womenfrom Korea, Taiwan, China, the Philippines, and Indonesiafound more gratification when the US Justice Department placed the names of 16 Japanese individuals involved in enslaving the women for sex on a watch list of suspected war criminals barred from entering the United States.
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Some argued that only prosecutions by the Japanese Government would adequately express governmental contrition and redress the abuse. Others supported treatment of the comfort women in school textbooks as a kind of reparation through memory. Minow, , p But there have been flashes and sparks that have momentarily lit up the landscape.
This book focuses on those. It seeks to sketch some of the scenes that are briefly illuminated by cosmopolitan criminal law, and to assess the significance and trajectory of the fragments of cosmopolitan criminal law that find a fleeting and tentative existence. Sparks and flashes are unreliable, unpredictable and dangerous, but they create bright light nevertheless. The existence of these fragments of light is the starting point of this work.
The term cosmopolitanderiving from the Greek cosmos world was first used in this context by Immanuel Kant,2 who picked up a thread of classical Greek thought3 when he set out his theory of cosmopolitan right in He argued that the relationships between democratic republics must be regulated by a framework which provides for the peaceful settlement of disputes between states. But he went further, arguing that cosmopolitan law must set minimum standards for the treatment of individuals, both citizens and foreigners.
Published 26th January 2018
Contemporary social theory is rediscovering and radicalising the concept of cosmopolitanism and recognising cosmopolitan law as one of its key actualisations. James Bohman and Matthius Lutz-Bachmann4 argue that Kants framework for a universal community of all peoples is given new urgency by the current development of globalisation.
Steven Vertovec and Robin Cohen5 chart the possibilities of peaceful human co-existence using the framework of a cosmopolitanism which focuses on human commonality. Ulrich Beck6 sees the development of a cosmopolitan politics as a necessary response to globalisation. For David Held,7 a democratic response to globalisation requires a cosmopolitan law that can regulate the unbounded growth of capital and other power structures.
For Mary Kaldor,8 a cosmopolitan approach is necessary because the nature of war is changing profoundly. Outdated categories of sovereignty, national interest and international law do not provide an adequate framework either to make sense of current conflicts or to challenge their worst excesses. Robert Fine says that: cosmopolitan social theory may be viewed as a multi-disciplinary attempt to reconstruct the core concepts of the human sciencessociety, political community, democracy, culture, sovereignty, etcin such a way as no longer to presuppose the givenness or Generality of the nation state in their designation.
For Jrgen Habermas too the concept of cosmopolitanism and the development of cosmopolitan law are key to contemporary responses to totalitarianism and globalisation. Kant, Nussbaum, Bohman and Lutz-Bachmann, Vertovec and Cohen, Beck, Held, , Kaldor, Fine, a. Habermas, It is new because its authority does not originate in state sovereignty but in a set of supra-national principles, practices and institutions. It is concerned with a specific set of crimes that are so huge that they transcend national boundaries both spatially and conceptually: genocide, ethnic cleansing and crimes against humanity.
Following the end of the Second World War, the four victorious powers organised trials at Nuremberg under the authority of international law to hold the Nazi leadership to account for their crimes. Within a year the energy and idealism of the process was spent.
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The Cold War that followed it lasted for half a century; half a century in which talk of cosmopolitan criminal law seemed to be little more than Utopian dreaming. After there was widespread reemergence of such talk, culminating in the creation of new institutions of enforcement, two ad hoc tribunals for Yugoslavia and Rwanda and the treaty for the International Criminal Court ICC.
These events can be understood in two contrasting ways. Nuremberg, it could be argued, was the start of the process of the actualisation of cosmopolitan criminal law, and the year Cold War was simply a brief intermission before the process resumed; it has been gaining momentum ever since. Alternatively, Nuremberg could be seen as a fundamentally flawed display of victors justice, the Cold War as the usual business of international relations between murderous and ruthless powers, and the re-emergence since as no more than a short-lived fantasy before lawless power again eclipses any hope of global authority.
The American response to the attacks on New York and Washington in September , similarly, can be understood either as an aberration from the path of progress or as a return to reality. Neither of these approaches is adequate; or, at least, we have no way of knowing which will turn out to appear the more correct. We do not know whether the 12 years that have followed the Cold War will be followed by a long period of darkness or by a period in which the sparks and flashes of law become more enduring, regular and predictable, transforming into something that can sustainedly illuminate the dark shadows of mass murder and terror.
In this book, I try to restrict myself to looking at the flashes, and to theorising their potentialities. I am not committed to a framework that understands cosmopolitan criminal law as part of an inevitable civilising process, nor to one that understands it as simply a cover for the great powers to carry on their usual business of domination.
I start with the social phenomena of crimes against humanity themselves and with the institutions of law that designate them as such. The existence of some isolated successes for cosmopolitan criminal law is problematic for those who hold the view that such law is nothing other than a legal fiction or a form of imperialist domination.
If there are gaps and spaces that law can fill and enlarge, if law is able to attain some independence from the powerful, then an understanding of law that sees it simply as a subterfuge that lends legitimacy to illegitimate power is unsustainable. If I can show in this book that it is possible for cosmopolitan criminal law to operate effectively at least in some instances, then opposition to law will have to focus more sharply.
Criticism will have to relate to the actual functioning of the legal system.
BSc (Hons) Criminology | University of Salford
The argument that cosmopolitan criminal law is Utopian in its concept, and that it therefore must be wholly compromised in its actuality, will no longer be credible. By May , at least , people, nearly all Tutsi, had been killed in Rwanda, but the US Government instructed its officials to refuse to call this a genocide. The moral power of the term genocide, which stems partly from its legal existence, is considerable. Why, if the basis of international relations is power, does the US Government find itself playing these word games in order to help it to deny the undeniable?
Clearly, there are factors at work other than naked power.