International Criminal Justice History Writing as Anachronism

This chapter focuses on the extent to which the contemporary project of international criminal justice cannot easily lay claim to what it imagines to be its past, because that past, despite superficial similarities, often exhibited fundamentally different concerns. It highlights three areas in which international criminal justice today is arguably dramatically different from how it was understood up to the 1990s. First, international criminal justice was for a long time much less obsessed with the criminalization of international law prohibitions specifically, and much more interested in the transnational dimensions of the criminal law. Second, it was much less committed to a strict model of individual accountability under international law and much more willing to see the state as the central pivot of international criminal responsibility. Third, it was intimately linked to peace projects whereas it has become intimately associated to the fight against atrocities and mass human rights violations.

Founding Moments and Founding Fathers

This chapter explores how sentimental affects become entrenched within institutions like the International Criminal Court and various popular postcolonial figures. It explores how both political figures and legal technocrats engaged in public performances of justice tap into prevailing emotional regimes that become institutionalized. The chapter begins with two brief examples to illustrate this process and then delves 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.

Theodor Meron and the Humanization of International Law

The chapter explores legal life-writing as a method of history within the context of international criminal law. It offers a biographical sketch of Theodor Meron and discusses some of his major works and especially his humanization thesis in light of the structural changes that occurred in the international legal order after the end of the Cold War. This account serves a triple function. The first is to draw a linkage between Meron’s scholarly works and certain developments in international criminal law. The second is to offer a critical perspective on the humanization thesis. The third is to ask questions about human agency, structural constraints, and historical causality in a self-reflective manner. Thus apart from being a work of legal life-writing in itself, the chapter simultaneously seeks to highlight the strengths and weaknesses of this form of history.

Crimes Against Humanity

Race and racism have a schizophrenic life in international criminal law (ICL) histories, both ever-present, and ever-elusive. This chapter excavates this double-life by tracing, not race, but its repression, in ICL historians’ projection of ICL’s origins to the mid-nineteenth century regime instituted to implement the prohibition of the Atlantic slave trade in the name of ‘humanity’. This regime included treaty born transnational tribunals (‘Mixed Commissions’) with jurisdictional authority that extended beyond national borders. Racialized structures and imaginaries hide in plain sight in histories of these tribunals as an embryonic ICL—present everywhere yet not acknowledged anywhere. This chapter argues that this absent presence is constituted, on the one hand, by juridification, and on the other, by moralization. Troubling legacies of juridification and moralization entails unpacking continuities and discontinuities with contemporary ICL and the work of race-invisibility in putting wind in the sails of humanity’s racially mal-distributive global dynamics.

Writing More Inclusive Histories of International Criminal Law

Historical master-narratives of international criminal law rest on a series of exclusions. Although there is growing recognition of the need to develop more inclusive histories of international criminal law, fundamental questions remain about the politics, methods, and agents of inclusion. This contribution explores some of the challenges of writing more inclusive international criminal legal histories and highlights some of the different registers within which questions of inclusion play out by reference to scholarship on the transatlantic slave trade and slavery. This rich literature provides an opportunity for reflecting on the dilemmas of more inclusive history writing in a cross-cultural racialized context. These challenges apply not just to the past. Scholarship on the slave trade, which has grappled with questions of agency, voice, and empathy, incites a challenge to the representation of victims in international criminal law today.

Unprecedents

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’ 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.

Nazi Atrocities, International Criminal Law, and Soviet War Crimes Trials

This chapter analyses the Soviet Union’s role in the global moment of post-Second World War justice. It examines the extent to which Moscow’s participation at the International Military Tribunal in Nuremberg, its war crimes trials of Axis soldiers, and its treason (or collaboration) trials of Soviet citizens were linked, but also when and why these different-level processes remained separate. Although the Soviet side made productive contributions to the history of international criminal law, its war crimes and treason trials continued to lack basic rule of law. In one crucial respect, though, the Soviet trials of Axis soldiers were distinct from Soviet prewar show trials. 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, not only affected public perception of the trials, it also accounted for differences within illiberal justice.

Redeeming Rape

Since the 1990s, feminist activists committed to the policy project of addressing wartime sexual violence through international criminal prosecution have deployed a specific historical narrative about the failure of international law to adequately punish sexual crimes perpetrated by Allied forces at the end of the Second World War. This ‘feminist failure narrative’ (FFN), however, can be contested on historical and normative grounds. Instead of being silenced throughout the post-war period, German women’s experiences of wartime sexual violence were in fact mobilized by both East and West German state-building projects that, in part, sought to minimize ordinary German complicity in the horrors of the war by emphasizing German suffering. Often, women had a vested interest in participating in the construction of these new nationalist stories. I argue that in foregrounding female sexual victimization the FFN depoliticizes women’s wartime agency, thereby dangerously shifting our gaze away from the politics of war.

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

By the terms of the ‘sentimental story of the state’ fashioned by thinkers such as Hobbes, the state represented the greatest bulwark against the disordering effects of violence, and obedience to the law represented the supreme virtue of the pacified citizenry. Nazi Germany fundamentally upset the sentimental story; in the parlance of Karl Jaspers, Nazi Germany was a Verbrecherstaat, a criminal state. The Nuremberg trial treated aggression as the paradigmatic crime of the criminal state; subsequent developments in international criminal law view acts of atrocity—crimes against humanity, genocide, and war crimes—as the paradigmatic state crimes. In this chapter, it is argued that this shift—from treating aggression to treating acts of atrocity as the paradigmatic state-sponsored crimes—has unsettled basic legal categories, such as the criminal/enemy dyad and the distinction between policing and war-making. The unsettling of these categories leaves, the chapter argues, international criminal law in a vexed state.

Editors’ Introduction

The introductory chapter to the volume serves four functions. First, it explains the motivations and sensibility of this collective work (Section:‘Intrigue’), with emphasis on the need to re-evaluate the received historiographical tradition of international criminal law. Second, it situates the project in the context of the current debates in international criminal law, international legal history and theory, and critique at large (Section:‘Context’). Third, it outlines the primary editorial objectives and the proposed mode of critique: to bring to the fore the structure and function of contemporary histories of international criminal law, to take issue with the consequences of these histories, and to call for their demystification (Section: ‘Objectives’). Finally, it discerns, post-hoc, the registers and thematics on the basis of which the essays retry the history of international criminal law (Section: ‘The Essays’).