Ilana Feldman is Assistant Professor of Anthropology and International Affairs at George Washington University. She is the author of Governing Gaza: Bureaucracy, Authority, and the Work of Rule, 1917–67, also published by Duke University Press.

Miriam Ticktin is Assistant Professor in Anthropology and in the Graduate Program in International Affairs at the New School.

In the Name of Humanity

THE GOVERNMENT OF THREAT AND CARE

Duke University Press

Copyright © 2010 Duke University Press
All right reserved.
ISBN: 978-0-8223-4810-8

Contents

ACKNOWLEDGMENTS………………………………………………………………………………………………………………………………………………………..viiIntroduction GOVERNMENT AND HUMANITY Ilana Feldman & Miriam Ticktin………………………………………………………………………………………………………..1When Humanity Sits in Judgment CRIMES AGAINST HUMANITY AND THE CONUNDRUM OF RACE AND ETHNICITY AT THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA Richard Ashby Wilson…………………27Children, Humanity, and the Infantilization of Peace Liisa Malkki…………………………………………………………………………………………………………..58Narrative, Humanity, and Patrimony in an Equatorial African Forest Rebecca Hardin…………………………………………………………………………………………….86Inhumanitas POLITICAL SPECIATION, ANIMALITY, NATALITY, DEFACEMENT Allen Feldman………………………………………………………………………………………………115″Medication is me now” HUMAN VALUES AND POLITICAL LIFE IN THE WAKE OF GLOBAL AIDS TREATMENT Joo Biehl…………………………………………………………………………151Environment, Community, Government Arun Agrawal…………………………………………………………………………………………………………………………..190The Mortality Effect COUNTING THE DEAD IN THE CANCER TRIAL S. Lochlann Jain…………………………………………………………………………………………………218Inequality of Lives, Hierarchies of Humanity MORAL COMMITMENTS AND ETHICAL DILEMMAS OF HUMANITARIANISM Didier Fassin……………………………………………………………..238The Politics of Experimentality Adriana Petryna…………………………………………………………………………………………………………………………..256Stealth Nature BIOMIMESIS AND THE WEAPONIZATION OF LIFE Charles Zerner……………………………………………………………………………………………………..290BIBLIOGRAPHY…………………………………………………………………………………………………………………………………………………………..325CONTRIBUTORS…………………………………………………………………………………………………………………………………………………………..359INDEX…………………………………………………………………………………………………………………………………………………………………363

Chapter One

WHEN HUMANITY SITS IN JUDGMENT

Crimes against Humanity and the Conundrum of Race and Ethnicity at the International Criminal Tribunal for Rwanda Richard Ashby Wilson

IN ORDER to exercise universal jurisdiction, the international humanitarian law that grounds modern international criminal tribunals and courts (e.g., for Rwanda, the former Yugoslavia, Sierra Leone, and the International Criminal Court) in most instances requires an undifferentiated notion of “humanity.” This chapter investigates some of the problems that arise in international trials when representatives of “humanity” come to deliver judgment on acts of racially motivated mass violence.

LAWS OF HUMANITY

Modern human rights directly emanate from ideas of natural law and natural rights based on a universal human nature. The latter have a long history that predates the modern era, but with the rise of modernity these ideas become central to secular forms of republican governance. While a universal conception of humanity can be found in monotheistic religious traditions extending back thousands of years, a radical shift in consciousness took place in Europe and the Americas during the eighteenth century. At this point in time, political philosophers, legal thinkers, and politicians detached the ideas of humanity and human nature from their religious moorings and incorporated them into a secularized moral, legal, and political code that formed the basis of a new republican sovereignty, particularly in the revolutions in France and British North America.

There was a significant legal dimension to the new politics of humanity in the eighteenth century. Of what did this “humanity law” consist? In their attempts to secularize humanity, early advocates of international law such as Emmerich de Vattel (the author of The Laws of Nations [2005], first published in France in 1758) defined humanity negatively, that is, humanity was constructed in its breach. A negative treatment of humanity characterizes eighteenth-century legal judgments such as Somerset v. Stewart, a groundbreaking case supporting the antislavery movement’s efforts to render the slave trade illegal in Britain and its colonial empire. On June 22, 1772, the lawyers of the former slave Somerset applied for his freedom before the court and served a writ of habeas corpus. Lord Mansfield’s judgment found in favor of Somerset and drew heavily on natural law to justify its line of argument, “The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political; but only positive law, it’s so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from a decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged” (§510).

In eighteenth-century European legal and political thought, humanity was largely a negative category. It was created by acts that repel and were considered odious, repugnant, and disgraceful, rather than by human behaviors deemed beautiful or intellectually or morally edifying. “Humanity” materializes when there is an offense against natural law, the legal and moral basis of human rights in the eighteenth century. From the outset, laws of humanity have been a mirror for human cruelty that can seemingly be applied in any setting. These ideas retain an influence to this day, as evidenced by the category of “crimes against humanity.” Humanity is still constructed in its breach.

The newly secularized humanitarian sensibility expressed sympathy and compassion when faced with suffering inflicted on others, not only of one’s kin or tribe or nation, but any person, regardless of race, religion, or origin. This humane response was seen in the eighteenth century to be self-evident, natural, and therefore universal. It required not just a disposition of empathy from the actor but an active indignation that motivates the political will to end all unacceptable suffering. In this way, the idea of humanity provided legitimate intellectual and moral foundations for a new type of political sovereignty, one which can be exercised across political borders and established jurisdictions. Without the idea of humanity, one cannot pass laws with universal jurisdiction, prohibiting a range of heinous crimes against distant others that offend the global sensibility of humanitarians.

Humanitarianism assumed an even greater prominence in international affairs in the nineteenth century, when the first array of “laws of humanity” were created, laying the foundation for the twentieth-century concept of “crimes against humanity.” We could better understand the influence of humanitarianism by seeing it both as an ethos that drives secular and religious social movements and a liberal doctrine allowing long-distance military interventions by leading world powers. As an ethos, a humanitarian sensibility had broad implications, propelling the worldwide movement to end the slave trade and inspiring individuals such as Henry Dunant to found the International Committee of the Red Cross in 1863, as well as the regulation of industrialized warfare’s terrifying consequences for soldiers. The Nuremberg trials nearly a hundred years later made extensive reference to the groundbreaking “laws of humanity” sponsored by the Red Cross, such as the 1864 Geneva Convention for the Amelioration of the Wounded and the 1899 Convention with respect to the Laws and Customs of War on Land (also known as The Hague II Conventions).

While these humanitarian campaigns were largely driven by individuals and nonstate organizations, governments found the humanitarian sensibility too tempting to resist, and great powers such as Austria, Prussia, Great Britain, and France invoked the rhetoric of humanity to justify a number of foreign military interventions, particularly against the fading Ottoman and Russian empires. The legal historian Michael Marrus (2009: 158–61) writes of how the interventions to support the Greek uprising against the Ottomans in 1827 and the beleaguered Jews of Damascus in 1840 all drew on appeals to “principles of decency and humanity,” the “laws of humanity,” and the behavior of “civilized society.” In 1876 the former British Prime Minister William Gladstone represented perhaps the paragon of a liberal imperial humanitarianism when he agitated in the most lurid rhetoric for a campaign on behalf of Bulgarian Christians, nearly ten thousand of whom had been massacred by Ottoman soldiers. As a result of its overuse and misuse by the great powers during the nineteenth century, Marrus argues, the idea of humanitarian intervention became sullied and lost all legitimacy in international affairs. For him, this partly explains why there was no humanitarian intervention to save European Jewry during the Holocaust.

After a long hiatus, acting “on behalf of humanity” became legitimate again in international affairs toward the end of the twentieth century. The idea of humanity as a collective political actor once again gained an influence over international governance, allowing the exercise of power at a distance and giving credence to the idea that international sovereignty can in certain instances trump national sovereignty. Key to understanding the political consequences of the idea of humanity is its capacity to transcend and even eradicate political boundaries. The “humanity” in humanitarian law provides a justification for long-distance interventions on the other side of the globe and makes possible both military interventions (e.g., the NATO air strikes in the Balkans in 1999) and multilateral relief operations of international institutions such as the United Nations. After the end of the Cold War, the United Nations established a multilateral justice system, culminating in the International Criminal Court (ICC), to prosecute crimes against humanity, war crimes, and genocide, namely, crimes with jus cogens status and universal jurisdiction.

One obvious problem with this framework of international justice is its reliance on a collective political actor (“humanity”) that cannot be easily found. Compared with the institutional political organization that takes place under the banner of nation-states, and even under religious, linguistic, and ethnic groups, the political and legal claims of “humanity” are very thin indeed. There is a widespread suspicion that “humanity” is a modern euphemism for a nineteenth-century vision of “civilization” and a cloak for the arbitrary actions of “civilized nations,” that is, a deceit for the neo-imperial designs of the United States, United Kingdom, and so on. Just as the great powers in the nineteenth century used humanitarian intervention to advance their empires, so in the postimperial era, powerful nations seek to impose their beliefs and practices selectively on others, all the while claiming to act not in their own special interests but in the name of “humanity.”

The German philosopher Carl Schmitt, arguably the main intellectual progenitor of modern antihumanitarian thought, once proclaimed that “whoever speaks of humanity is a liar” (cited in Wheeler 2000: 179). In The Concept of the Political, Schmitt (1996: 54) contends that when states appeal to “humanity” (e.g., to prevent or punish “crimes against humanity”), they are usurping a universal concept against their opponent: “At the expense of its opponent, it tries to identify oneself with humanity in the same way as one can misuse peace, justice, progress and civilization in order to claim these as one’s own and to deny the same to the enemy.”

These accusations may or may not be justified, and I will not address here the clash between advocates of international justice and local political sovereignty at this level. Instead, I will try to demonstrate some of the problems that arise when international criminal law, based on the idea of “crimes against humanity,” encounters widespread political violence that draws on irredentist ideas of race and ethnicity.

This chapter addresses one specific question: Why has the International Criminal Tribunal for Rwanda (ICTR) been so vexed and inconsistent in its approach to concepts of race, ethnicity, and group? Why has an issue so straightforward for Hutu Power activists as they embarked on their killing spree been so difficult for international lawyers? First, it is worth observing that such inconsistency has been characteristic of many if not most international treaties and conventions on race and racism drafted since the Second World War. For instance, the 1966 International Convention on the Elimination of All Forms of Racial Discrimination rejects race as a category and refers to racial differentiation in the preamble as “scientifically false, morally condemnable, socially unjust and dangerous.” And yet, on the other hand, the convention could be seen as uncritically substantiating the existence of races when it encourages “understanding between races” (preamble) and “eliminating barriers between races” (Article 2.1.e).

The difficulties encountered by the ICTR in defining the status of the Tutsi indicates a pervasive uneasiness felt by international jurists concerning ideas of race and ethnicity. There appears to be an intrinsic paradox: while the international court administering humanitarian law is highly uncomfortable with collective categories and any suggestion that it might be reproducing the categorizations of the gnocidaires, it requires these very categories to secure convictions for the crime of genocide. One source of this double bind is the long-standing incompatibility between the enduring universalism of international law and the romanticism inherent in the concept of genocide. Scholars have documented the tensions between the universalism of international law and the romanticism of local national and cultural movements, but at the Rwanda tribunal the categories of romanticism are embedded in international law itself, making the experience even more disorientating for attorneys and others working in international law.

I will seek to elucidate this point further. On the one hand, an international court such as the ICTR is made up of cosmopolitan legal actors from all over the world. The anthropologist of globalization Ulf Hannerz (1990: 246) refers to a new class of cosmopolitans with “decontextualized cultural capital,” made up of individuals who traverse global networks, including diplomats, intellectuals, international lawyers, U.N. bureaucrats, businesspeople, and journalists. According to Hannerz, many cosmopolitans are drawn to abstract value formulations such as the “rights of man,” “justice,” and “freedom of speech” which allow them to manage meaning in their boundary-crossing transnational networks (247).

Proponents of “humanity law” do not draw solely on domestic or customary criminal law to try crimes committed in an African country. They draw primarily from international criminal law, the legitimacy of which derives the jus cogens status of the crimes tried under customary international law. After all, at the International Criminal Tribunal for Rwanda, the massacres in Rwanda are categorized as egregious crimes committed against “humanity” rather than against “the Tutsi” or even “the Rwandan people.” This allows the tribunal to transcend domestic jurisdiction and to claim a universal jurisdiction that allows any competent court anywhere in the world to hear a genocide indictment.

The conflict between cosmopolitan universalism of “humanity law” and the romanticism of the category of genocide often reveals itself in the tension between individual criminal responsibility and the collective dimensions of the crime. Since the Nuremberg trials and the Nuremberg Charter, individual criminal responsibility has been a fundamental legal principle in international law. International law since 1945 has consistently maintained that individuals and individuals alone are responsible for their actions, not the racial group, not the state, and not even the army unit to which the individual belonged. This is clearly written into the statutes of both the ICTR and the International Criminal Tribunal for the former Yugoslavia (ICTY), and all the final decisions of these tribunals contain a section reaffirming the principle of “individual criminal responsibility.” This individualism has many benefits, notably in that it may avoid a repetition of the collective punishment of Germany after the First World War, but nonetheless, as we shall see, it leaves international lawyers with little understanding of how to comprehend crimes of a collective kind.

A BRIEF SURVEY OF THE INTERNATIONAL LAW OF GENOCIDE

In order to understand why the ICTR reversed its definition of Tutsi several times, we need to better understand the international law of genocide, and in particular the collective dimensions of the crime of genocide that seem to cause such problems for jurists creating and implementing the “laws of humanity.”

The definition contained in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (hereafter “Genocide Convention”) gives genocide a qualitatively different character than most other crimes against humanity in that it must be directed at individuals because of their membership in a collective grouping. In Article 2, genocide is defined as “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Whereas the vast majority of criminal acts require only two individuals, where one commits a proscribed act against the other, in the crime of genocide, it is conventionally held that the victim is both the individual and a national, ethnic, racial, or religious group.

In the first twelve years of the tribunal’s work, the prosecution faced a high threshold for proving genocide. Demonstrating that the accused is guilty of genocide requires showing that he or she committed a proscribed act (actus reus), and this means demonstrating that the victim or victims belonged to a national, ethnical, racial, or religious group as designated in the Genocide Convention. If the victims are not members of such groups, or if the existence of the victim’s group is uncertain, or if the group has a stable identity but that identity is not national, ethnic, racial, or religious, then the crime of genocide cannot be proven. On these grounds, the extermination of political and economic groups has generally been excluded from the category of genocide.

(Continues…)

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