Inclusion, Inequality, and Intervention in International Political Thought
SINJA
GRAF
3
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 certain other countries.
Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America.
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 license, or under terms agreed with the appropriate reproduction rights organization. Inquiries 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.
Library of Congress Cataloging-in-Publication Data
Names: Graf, Sinja, author.
Title: The humanity of universal crime : inclusion, inequality, and intervention in international political thought / Sinja Graf.
Description: New York, NY : Oxford University Press, [2021] | Includes bibliographical references and index.
Identifiers: LCCN 2020043992 (print) | LCCN 2020043993 (ebook) | ISBN 9780197535707 (hardback) | ISBN 9780197535721 (epub)
Subjects: LCSH: Crimes against humanity—Law and legislation. | Crimes against humanity. | International crimes—Law and legislation. | International crimes.
Printed by Integrated Books International, United States of America
1. “To Regain Some Kind of Human Equality”: Theorizing the Political Productivity of Universal Crime
2. From Humanity to Sovereignty: Universal Crime and Sovereign Foundings in John Locke’s Second Treatise of Government
3. “The Conscience of the Civilized World”: Nineteenth-Century International Law and the Decline of Notions of Universal Crime
4. Cosmopolitanism and Crimes Against Humanity: “Global Policing” and the Legitimacy of Political Violence in the Late Twentieth Century
Acknowledgments
It takes a village to write a book. In this case, it took a global village. While working on versions of this book in Ithaca, Istanbul, and Singapore, I have accrued more debts than I can hope to settle. At the National University of Singapore, I thank my colleagues in the Political Science Department and the Faculty of Law for creating the institutional space in which I could bring this project to its conclusion. The outlines of this work I first developed in my dissertation at Cornell University. My committee members’ supervision laid the foundations for my work’s intellectual orientation. The encouragement, scholarly expectations, and intellectual vivacity of Susan Buck-Morss, Matthew Evangelista, Jason Frank, and Richard Bensel decisively shaped my path to becoming a young scholar. Jens David Ohlin, Sidney Tarrow, Matthew Evangelista, and Muna Ndulo supervised my course of study in international law at the Cornell Law School. Their expertise influenced my thinking in ways pivotal to the development of this book. Odette Lienau read the entire dissertation and her comments prompted some very important changes. M. Elizabeth Sanders and Mary Katzenstein set my ambition to excel as a lecturer. To this day, I often return to Mary Katzenstein’s class on prisons for academic, political, and pedagogical reasons. Isaac Kramnick was a mentor, scholar, teacher, and advisor without equal. Without him and Miriam Brody, my perspective on the academy—and life within it—would have been very much impoverished.
Cornell’s Department of Government provided me with an academically lively institutional home during my doctoral studies. Conversations with Peter Katzenstein, Alex Livingston, Aziz Rana, and Sarah Kreps formed my thinking about this project in its incipient phase. The Reppy Institute for Peace and Conflict Studies curated a scholarly community for engaging new ideas under the leadership of Judith Reppy and Jonathan Kirshner. I am especially grateful to the Reppy Institute for giving me the yearlong Bluestone Peace Studies Fellowship, which afforded me the time to write key portions of the dissertation. Tina Slater, Laurie Coon, Judy Virgilio, Elaine Scott, and the staff members at the ISSO provided steady administrative support,
thereby saving me from what otherwise would have been certain bureaucratic demise.
The conversations with my colleague William Bain over the years have been influential for this project’s maturation. The depth of his expertise and his commitment to knowledge creation make him a model mentor. Writing this book without his encouragement would have been a much more challenging process. Antony Anghie’s graduate class some ten years ago gave this study its direction. In Singapore, his academic advice, sharp wit, and generosity brightened the routine that it took to complete the project. Helen Kinsella’s scholarly work and her friendship never cease to bring insight and joy. Jeanne Morefield’s political thought set the stage for mine to develop. Theo Christov read a chapter when it was at its earliest stage. His feedback and interest in the argument encouraged me to more fully develop my thinking on Locke. Harvard’s Institute for Global Law and Policy provided an important academic forum for internationally engaged scholarship. Sharing ideas with Osama Siddique, Maryam Khan, Jamie Rowen, Itamar Mann, Luis Eslava, Rose Sydney Parfitt, and Sundhya Pahuja enlivened my writing.
Writing, like life, is impossible without friendship. Ayça Çubukçu, Murad Idris, and Pınar Kemerli have been my examples for the intellectual pursuit of critical thought. Others who similarly granted me the privilege of their companionship over many years are Theresa Krüggeler, Katie Church, Yossi Bronsnick, Gregor Sayet-Bone, Simon Gilhooley, Michelle Greco, Avery Slater, Michelle Renée Smith, Corinna Lee, Noelle Brigden, Nolan Bennett, Kevin Duong, Alison McQueen, Simon Cotton, Kyong-Min Son, Anthony Reed, Ng Shi Wen, Gerard Sasges, Shailey Hingorani, Rohan Mukherjee, Soul Park, Kriti Vikram, Tan Hsien-Li, Sandra Field, Amrita Kattan, Victor Kattan, Fanar Haddad, Farrah Mahmoud, Deepak Nair, Kevin McGahan, Vincent-Joel Proulx, Nancy Webster Gleason, and Joshua Kurz. Janice Gallagher, with Emily, Ellen, Allyson, Jasper, and Aidan, have added love and light to the long decade during which this book was in progress. I wish we had had much more time to figure out this one really important question together with Jay. The cats, of which there have been either two too many or two too few, have provided solace, predictability, and entertainment. It shall be recorded that writing parts of this book came at the cost of the unintentional and intermittent undernourishment of a rescue cat. The cat was fine in the end.
At Oxford University Press, Angela Chnapko has overseen this project from its beginnings to its completion. Her insight, support, and patience
make her an exemplary editor. I thank Alexcee Bechthold for the meticulous management of the production process. Gopinath Anbalagan and Sue Warga took care of the foundational work of copy editing. The anonymous referees and Oumar Ba wrote extended and astute reviews of the manuscript that yielded a more focused, pithier, and livelier book. They have my deep appreciation for their work. Big thanks are due to Samuel Moyn and those who took the time to craft their endorsements. Dominic Thian masterfully created the cover art with professionalism, detail, and skill. Certain elements of this book were previously published in journal articles. Parts of an earlier version of Chapter 1 appeared in Law, Culture and the Humanities 15, no. 3 (2019). Portions of Chapter 2 were published in Political Theory 46, no. 4 (2018).
Ulaş, my life partner, a fellow writer, and an exceedingly fun person, cared so well for me during the writing and rewriting of this book that there were times during which I forgot the location of the kitchen. He sustained his commitment to my work across multiple intercontinental moves, read very many drafts, halved my sorrows, and doubled my joys. Thank you for the gift and the labor of your love. My parents-in-law, Hülya and Nedim, together with Çağdaş, I thank for welcoming me as one of their own. This work is dedicated to my mother, Regina, who alone made everything possible. Without her unconditional love, passion for knowledge, and unyielding dedication, there would simply be no book at all.
Introduction
Much has been written on concepts of the human as the active subject of modernity, on humanism, humanitarianism, and the humanities. But of the innumerable books . . . virtually nothing . . . traces the historical formation of the concept of humanity as a collective subject.1
The phrase “crimes against humanity” has acquired enormous resonance in the legal and moral imaginations of the post–World War II world.2
From Colombian drug trafficking to China’s targeting of the Uighurs, from calls to prosecute Brazil’s President Jair Bolsonaro for his COVID-19 response to German criminal proceedings against Syrian security guards, from forced disappearances in Venezuela to Sudanese militia violence, from denunciations of the destruction of indigenous sites by the USMexico border wall to claims that US president Donald Trump obstructed coronavirus testing, one concept threads through the reporting on these issues: crimes against humanity. In the first thirty-three weeks of the year 2020, the New York Times reported forty-four news items such as these, all of which revolve around the term “crimes against humanity.” “Crimes against humanity” is now integral to political vocabularies the world over. For the “Responsibility to Protect,” the UN Security Council, the International Criminal Court, and the African Court of Justice and Human Rights, the notion of crimes against humanity has also become foundational to a legal vocabulary used in key international institutions’ policies and decisions.3 In a world set ablaze by transnationalized civil wars, the term “crimes against humanity” serves as a normative touchstone for diplomats, journalists, and activists to denounce atrocious political violence and add legitimacy to calls
for foreign military intervention, thereby reinforcing the tightening relationship between international criminal law and the ius ad bellum. 4 Global in its discursive appeal and universalizing in its moral exhortation, such claims of a humanity injured seek to expose violence that is portrayed not just as inflicting suffering on its concrete victims but as rupturing the normative bonds constitutive of humankind. The notion of crimes against humanity, to rely on David Luban’s words, has indeed “acquired enormous resonance in the legal and moral imaginations” of the latter twentieth century, and especially in the post–Cold War world. Since the Nuremberg Trials, crimes against humanity have slowly displaced the crime of aggressive warfare as the pivotal norm, calibrating a global moral compass in a discursive passage “from aggression to atrocity,” to use Samuel Moyn’s phrase.5 And yet Talal Asad’s observation that “the historical formation of the concept of humanity as a collective subject” is understudied remains intact.
This book lodges its argument in between the currently ubiquitous circulations of “crimes against humanity” and the intellectual amnesia about the historical formation of “humanity” as the collective subject of universal injury. It examines the more elemental idea that humanity as a whole can be offended—an idea that I capture with the term “universal crime”—in the history of broadly liberal European international thought, as its proponents debated the legitimacy of European interference in non-European polities in contexts of colonial rule and postcolonial interventions. This inquiry necessitates that we turn away from the signature individualism by which liberal arguments on rights have gained traction in the study of political ideas. While the genealogy of individual rights in political liberalism is well researched, the fact that liberal thinkers have regularly drawn on notions of universal crime has remained underexplored. The less well-worn perspective taken here examines the workings of “humanity” as a collective concept in liberal arguments on world politics and on the legitimacy of coercion across societies.
The study maintains that notions of universal crime entail the imagination of humanity as the collective, normatively integrated, and hierarchically ordered subject of world politics that extends a universal yet minimal normative recognition by including everyone as at least a potential offender against mankind. Unlike the violation of individual rights, such an offense or a crime not only injures concrete victims but also fractures the normative ties that bond a global community. The idea of an offense against humanity therefore projects mankind as a collective subject constituted by universal norms
that bind all of its members regardless of their consent. Seen through the lens of universal crime, humanity is further a hierarchically ordered subject, because those called offenders against mankind are subject to those allegedly acting on behalf of mankind. The normative recognition bestowed upon the offender against humanity is accordingly one of minimal extent, for this figure represents one of mankind’s least empowered members, subordinate to others’ allegedly legitimate coercion. It is also a recognition that is neither benevolently granted nor beneficial to the receiver. We are perhaps not surprised that European political thinkers relied on assertions of a universal injury to humanity to capture activities in non-European societies, insofar as they provided rationalizations for the legitimacy of European coercion in faraway polities.
The book therefore details how European theorists of the international arena in the broadly liberal tradition mobilized notions of universal crime such that this minimal recognition coalesces with the subjection of the offender against mankind to the punitive coercion of those assuming the authority to enforce humanity’s law. At the center of the analysis stand the theoretical maneuvers prompted by the political need to simultaneously articulate humanity as fundamentally one and divided. The study shows that the notion of universal crime projects a unique imagination of mankind as both normatively unified across the globe and empirically divided into those contravening mankind’s law and those complying with it. It also argues that this projection occurs in ways that cast claims to universal crimes as the authorization to act coercively in political spaces far away. When European political and legal theorists mobilize the notion of universal crime, they assert the normative unity of mankind such that anyone anywhere could offend against its universal norms. At the same time, such arguments for a humanity universally injured enable the claim that anyone may enforce its universal norms. Hence, European international theorists have relied on this idea to construct what Didier Fassin has called the “hierarchies of humanity” when they negotiated the legitimacy of Europe’s colonial, imperial, and postcolonial interventions into non-European political societies.6
A major upshot of this study is that notions of universal crime push us to critique strategies of inclusion as much as strategies of exclusion. As such, this argument joins forces with recent research on the location of empire in European political theory and with scholarship on Third World Approaches to International Law (TWAIL) that have exceeded Uday Mehta’s indictment of Western political thought’s “liberal strategies of exclusion” of peoples and
polities necessitated by European imperial control of the globe.7 Jennifer Pitts has accentuated the limitations of critiques that posit exclusion as the problem by highlighting, in reference to Richard Tuck’s findings, the inclusion of peoples and states in European international treaty practices as the source of their dispossession and control. Positing exclusion of non-Western societies from the concepts, norms, and institutions definitive of European modernity as the problem, Pitts argues, unduly presents inclusion as a solution, because “another form of injustice [is] enabled by legal ‘inclusion’ on unequal terms.”8 In a similar vein, TWAIL scholars such as Antony Anghie and Sundhya Pahuja have demonstrated that it was indeed the unequal inclusion of indigenous peoples and later (proto-) Third World states in European/ Northern institutions of international law that enabled their depiction as regressive and underdeveloped, which in turn allowed for rationalizing their disciplining and (attempted) coercive transformation.9 Adom Getachew has further developed a forceful assessment of the twentieth-century inclusion of decolonized states in prevailing institutions of international society as a vehicle for postcolonial domination. Getachew argues that the inclusion of newly independent states in the League of Nations took the form of an “unequal integration” that allowed the League to continue its domination of those states through a kind of international membership that imposed demanding obligations and granted limited rights.10 Getachew, Pitts, and Danielle Allen hence propose to shift our gaze away from exclusion and toward domination as a key problem, and toward types of inclusion as vehicles for such domination.11
This study shares the impetus of these critiques of inclusion, but it differs from those works in terms of subject matter and objective. Unlike those works, The Humanity of Universal Crime directs its focus on deployments of “humanity” in European international legal and political thought in order to question its conceptual operations once it is conjoined with the idea of “criminality” to yield the notion of “universal crime.” This elemental idea of an offense against mankind entails asymmetric inclusions precisely via its combination of humanity’s universality and criminality’s normative hierarchy. The notion of universal crime modulates the universal inclusiveness of “humanity” by casting the criminal against humanity as the least desired member of this universal community who is subject to coercive action. Tying humanity to criminality has allowed political and legal thinkers to harmonize humanity with arguments for foreign intervention in the name of (re-) enforcing mankind’s universal law. Claims to universal crime hence mediate
between humanity’s universal reach and particular instances of foreign coercion against particular people. The inclusion engendered by notions of universal crime is also hegemonic in the sense that it stipulates certain particulars as universally valid.12 European philosophers preferred to elect behaviors unlikely to occur in European societies themselves as instantiations of injuries to humanity, thereby reentrenching Europe’s imagined global superiority via claims to other people’s transgressions against mankind as a whole. They crafted a vision of humanity in which some—or indeed most— are included as potential offenders and others as the potential enforcers of humanity’s law. Non-European societies, by the same brushstroke, received an “inclusion via liability” sustained by Eurocentric values and practices posited as a universal, formally egalitarian yardstick.13 Articulations of universal crime thereby often display an inclusionary Eurocentrism as they stipulate particular norms as universal standards applicable to all members of mankind everywhere. Humanity, if seen through the lens of criminality, becomes a resource for claims to authority that functions on this very substratum of an unequal inclusion. Such a Eurocentrism marks the pre- and post-nineteenthcentury arguments on universal crime studied here. It differs, as the following chapters will lay out, from the exclusionary Eurocentrism that marked nineteenth-century theories of international law, which contracted the reach of normative recognition and legal agency to (international) “society,” which comprised only European “civilized” states. The distinction between these two versions of Eurocentrism highlights the hierarchies that emerge from normative inclusions and thereby broadens our understanding of claims to justified inequality beyond problems of exclusion.
By implication, a distinct vision of humanity attends this universal, unequal inclusion. If articulated via the notion of universal crime, humanity as a whole ceases to appear as a unified community of individuals positioned equally to one another. Once tied to law that can be contravened, humanity spans a spectrum of normatively ranked positions ranging from the lawabiding to the law-breakers. This stratification is indeed required to maintain a normative vision of humanity. A normative understanding of humanity that exceeds a merely descriptive assessment—if the latter is at all possible— and stipulates certain values and practices as essential to mankind necessarily entails that some will fall short of conforming to them. Such a vision of mankind therefore depends on treating the aberrant and the compliant unequally, which renders it markedly different from an ethical imagination of mankind as a unified community of free and equal members. The latter
perspective cannot speak to what should follow a transgression against what is deemed constitutive of the freedom and equality of all members of mankind, which requires the relative unfreedom and inequality of some.
The key contribution of the pages to follow is the historicized emancipation of politicized notions of “humanity” from concepts and theories that have hitherto overshadowed it. The idea of a humanity collectively injured has remained one of the least examined concepts in the history of political thought. Its analysis here exceeds more commonly circulating invocations of humanity that rely on an aesthetic, and thereby somewhat superficial, understanding of crimes against humanity in political commentary and scholarship. This study further requires refocusing our attention so that we may step away from some familiar ways of thinking and, especially, change our perspective on some dominant approaches to liberal political thought. First, we need to pivot away from studies of the human as the bearer of individual rights—the quintessential subject that emerged in early modern (proleptic) liberal thought—in order to assess the collective concepts of “humanity” and “criminality” as they have shaped the liberal tradition of Western political thought.14 Sparked by the twentieth-century human rights revolution, political theorists have produced rich work on the history of the liberal idea of individual rights, including its colonial contexts. These studies have illuminated the virtues and vicissitudes of universal individual rights above and beyond the disciplinary confines of contemporary international human rights law. Humanity as a normative subject that surpasses the sum of its rights-holding members, however, exceeds the aperture of individual rights. Hence, despite the increasing prominence of international criminal law vis-à-vis international human rights law since at least the 1990s, comparable work on the political articulations of the idea of an injury to mankind remains wanting. Second, inquiries into the contemporary norm of “crimes against humanity” as codified in positive international criminal law across normative political philosophy and international jurisprudence, valuable as their theorizations of the crime have been, also do not examine historical mobilizations of a humanity imagined as collectively injured, nor the political projects that attended these.15 It is for these intellectual reasons that this book unshackles the idea of an offense against humanity from its disciplinary and historical confines in current scholarship, a position that is perhaps the result of giving too much credence to the precise wording of the term “crimes against humanity” as the carrier of a broader, more elemental idea.
The Political Productivity of Universal Crime
I capture this more elemental idea of an offense against mankind with the term “universal crime.”16 Although it is nowadays commonplace to conflate the idea of an injury to humanity with the current phrase “crimes against humanity” as codified in twentieth-century international criminal law, earlier European articulations of the basic idea have taken the form of phrases such as “an offense against the whole human species” (Locke), “a wrong done to mankind” (Gentili), and even “crimes against humanity.”17 The value of abstracting from the current formal legal definition of “crimes against humanity” to the term “universal crime” is that this distinction enables an analysis of the more fundamental idea of an offense against mankind that is not constrained by the technicalities of the contemporary codification of the crime.18 The distinction between crimes against humanity and universal crime therefore widens the aperture beyond an international law that requires application and enforcement, to include the philosophical questions that attach to articulating humanity as the collective subject of universal norms.19 In the same way that theorizations of human rights have surpassed the legal discipline, this perspective historicizes our understanding of claims to a humanity injured, thereby illuminating the ways in which the phrase “crimes against humanity” circulates today in political discourses beyond courtrooms and legal argument.
The book engages the idea of universal crime through its political productivity. Such a reading of norms turns away from questions of their specific content and historical variations. I do not examine what kinds of action are singled out by different articulations of universal crimes as injurious to mankind and why. Instead, the vantage point of political productivity illuminates the ways in which the notion of universal crime shapes our vision of mankind via the kinds of subjectivities, forms of agency, and relationships of authority that the concept entails. As an illustration, take the concept of a right—more specifically, the right to private property. One way to study property rights is to inquire about their content and how it changed over time. Questions to ask from this perspective would be whether humans could hold property rights over other humans and why. Another question would be why certain jurisdictions restrict real estate ownership to a tenure of ninety-nine years. These are all valid questions, yet they do not exhaust all those we can ask about property rights. Another set of questions would analyze what kinds of identities and relationships property rights create in societies. For instance,
how does a property right produce the figure of the lender and the debtor? How does it structure the relationship between them? How are authority, obligation, and entitlement distributed between the two? Who has the authority and power to adjudicate between the two in the case of conflict? How does society regard and protect each? It is this latter orientation that I am bringing to the notion of universal crime in delineating how European political thinkers formative of Western ideas about international politics have crafted the figure of the offender against mankind and how they positioned European actors as the guardians of humanity’s law, bearing the entitlement to wield coercion against offenders. Doing so, I take a cue from Richard Tuck’s study of the empowering effects of the idea of subjective rights in The Rights of War and Peace. There Tuck lays out the political productivity (although he does not use the phrase) of early modern notions of natural rights. He argues that the early modern and modern concept of rights enabled not only the vision of the emancipated, autonomous, and freely acting individual, but also, in tandem with it, the concept of the modern state as it engaged in aggressive policies of colonial overseas expansion. This imperial picture of the history of liberal rights, however, remains incomplete without historicizing the notion of universal crime in the same context of the liberal tradition. Rights call forth an individual actor with entitlements—entitlements that outsiders may arrogate to themselves to enforce coercively on the right-holder’s behalf. Universal crimes, on the other hand, posit an injured humanity, on behalf of which outsiders may claim to act toward concrete others for the sake of punishment. A focus on the political productivity of this elemental idea allows for an examination of arguments on coercion, order, hierarchy, and justice in international politics, articulated in the universalist key, that attend the historical and contemporary mobilizations of “humanity.”
In addition, norms and laws are here taken as already part of the problems they were purportedly designed to solve. Contrary to an “applied ethics” perspective that views laws as solutions to political problems, this study considers norms not as politically uncontaminated, corrective tools of problem-solving, but rather as the very form though which political projects are coherently articulated in the first place.20 Bonnie Honig sketches a particularly useful perspective on norms and laws for this book, noting that we can “assess new international norms, laws, and institutions not simply as good or bad solutions to an earlier problem, but also as political maneuvers in their own right.”21 By examining the vision of humanity entailed by the discursive reliance on certain norms, we go beyond questioning the practices
these norms outlaw.22 Hence this analysis turns away from studies that assess the definitional content of norms generally and of crimes against humanity specifically.
Engaging theoretical arguments on universal crime through the lens of their political productivity means also that I am not interested in scrutinizing the intentions or motivations of those invoking the concept nor in using this scrutiny to evaluate the justness of their (coercive) actions. The point here is not to distinguish sincere from hypocritical invocations of a universally offended humanity. Instead, the point is to assess how influential voices have actually used articulations of universal crime and what vision of humanity and international arises from these uses. In taking this perspective, I join critical scholars of human rights such as Nicola Perugini, Neve Gordon, and Ayça Çubukçu, who have shown that the “misappropriation” argument regarding universal norms is too facile, because it assumes a fundamentally “good” essence of human rights that is appropriately realized only in political action that improves the lot of the oppressed. Critical legal scholars have argued that such a view of universal norms as they have been solidified in international law misrecognizes the constitutively open and ambivalent character of prima facie liberating norms and laws. Perugini and Gordon’s The Human Right to Dominate turns against what they call the “hydraulic model of human rights,” represented by Michael Ignatieff, which depicts human rights promotion as resulting in emancipation or at least less domination of the meek. In response, they document a global proliferation of “human rights appropriations” that consist in the convergence between liberal and conservative, emancipatory and repressive deployments of human rights language.23 Çubukçu’s For the Love of Humanity further debunks the “instrumentalization thesis” that she finds to underlie critiques of the wrongful use of human rights language in the case of the 2003 US-led war on Iraq. Instead of distinguishing between authentic and cynical (instrumental) uses of human rights, Çubukçu examines the openness of human rights vocabulary in light of the fact that both the advocacy of and opposition to this war were articulated in this vocabulary.24 Similar to these studies, The Humanity of Universal Crime prioritizes the examination of a variety of (European) canonical, theoretical claims to a humanity universally harmed over an argument for the progressive, emancipatory, and protective potential of international (criminal) law enforcement. At the same time, and in this very spirit, the approach deployed here engages the concept of humanity in an analysis that remains otherwise foreclosed by superficial dismissals of
the vocabulary of humanity as a threadbare cover for particularist power interests. Going beyond Proudhon’s dictum that “whoever invokes humanity wants to cheat” necessitates a more sophisticated account of the ways in which political and legal theorists have actually used the term “humanity” to advocate a range of hierarchical—and colonial—political relationships across the globe.25 Martin Wight’s comment that the “ ‘theory of humanity’ . . . verges upon a theory of colonial administration” highlights the colonial entanglements of the notion of universal crime and thereby speaks critically to contemporary claims of the justice of coercive cross-border interventions in the name of a universal humanity.26 Refining this position, the argument here shows how the notion of mankind has been mobilized to harmonize it with arguments for the legitimacy of foreign intervention. The notion of universal crime has functioned as a major mediating element reconciling the universality of mankind and the concrete violence of foreign coercion. Universal crime’s normative casting of humanity indeed entails the coercive enforcement of universal norms against those found in violation of humanity’s constitutive values.
Lastly, a politically productive perspective on universal crime highlights that the concept projects humanity as an explicitly collective subject of world politics.27 Examinations of arguments relying on a language of human rights remain limited to assessing the formation of the individual as the bearer of entitlements.28 No matter the acclaimed universality of individual rights, their infringements ultimately pertain to an aggregated individual, not a collective subject.29 Constructions of normative universalisms via individual rights therefore do not speak to the ways in which political thinkers have mobilized the concept of humanity in order to argue about legitimate hierarchies and justified coercion in world politics. The notion of universal crime, however, projects an imagination of mankind as a community governed by a universal law. The fact that universal crimes claim mankind as a normatively unified community qua community also corrects liberal interpretations of humanity that remain insensitive to its constitutively collectivist dimension. For instance, David Luban’s theory of crimes against humanity defines “humanity” as humankind, where humankind is not a normatively framed community but instead the sum of all rights-bearing human individuals on earth.30 Once hitched to the notion of a universal offense, this perspective overlooks the irreducibly collectivist dimension of “mankind,” focusing instead on the individualist, additive dimension. In contrast, the pages to follow examine the fundamentally collective character of humanity
as the subject of universal offenses, which is especially interesting in light of liberal political thought’s reliance on notions of universal crime in relation to the tradition’s signature individualism. Luban’s approach also overlooks the normative character of “humanity” once the concept has been articulated via universal crime. It is not the case that offenses against humanity actually and indeed hurt all rights-bearing individuals in an empirical way. Rather, such offenses impinge on the normative fabric of humanity as a community. In sum, an individualist lens cannot begin to draw the contours of humanity as the collective subject of universal crimes.
Criminality’s Normative Articulation of Humanity: Inclusion, Inequality, Intervention
The politically productive features of the notion of universal crime come to the fore more clearly once we engage Carl Schmitt’s treatment of humanity, enmity, and criminality in international politics. Once we contrast the two figures of the “criminal against mankind” and the “enemy of mankind,” we find that criminality and enmity produce distinct conceptions of humanity. Scrutiny of Schmitt’s discussion, as it spans The Concept of the Political and The Nomos of the Earth, accentuates the hierarchical inclusion within humanity’s normative order that envelops the universal criminal that is at stake here. Broadly speaking, Schmitt objects to the infusion of international politics both with appeals to a universal humanity and with norms of international criminality, because they render void the stabilizing effects peculiar to the encounter between enemies as formal equals facing each other in a non-normative, anarchical antagonism. Such antagonism limits interstate violence to existential struggles for self-preservation and secures the opportunity of neutrality for states not directly involved.31 Arguments for the legitimacy of violence in international affairs via universal norms, from his perspective, serve as catalysts for political violence, as they remove the concrete limits on the legitimacy of its use. Especially pernicious, to Schmitt, is a normative vocabulary of humanity, because everyone can claim to act in its name and no one can reserve the right to stand idle if its protection is at stake. But on closer inspection, Schmitt’s attachment to enmity paints an incomplete picture of the political operations of humanity, which emerge with greater subtlety once we assess the connection between humanity and criminality.
The inclusive aspect of universal crime comes to light in a reading of The Concept of the Political. There Schmitt posits the encounter between equal enemies as the prime political encounter. Enmity, for Schmitt, is an ethical concept, not a moral one. Enmity is not morally right, but it is a good principle for stabilizing political relationships and especially for hedging in the vagaries of violent conflict. Put differently, enmity between formally equal opponents is better than conducting international politics in the name of universal values, invoked by states to authorize violent measures as a fight of right against wrong. In that vein, Schmitt highlights the introduction of normative universals, such as humanity, into politics as a vehicle for the escalation of violent conflict. He finds that justifying political action in the name of humanity is especially calamitous due to the indelible presence of enmity in politics that is not superseded or eradicated by appeals to normative universals, but rather conjoined with them. Accordingly, his seminal argument on the “enemy of mankind” considers political antagonisms articulated in the name of humanity to entail the perverse outcome of dehumanizing the opponent.32 If a state resorts to coercive measures in international politics under the banner of mankind, the “adversary is no longer called an enemy” but rather is an “outlaw of humanity,” an “inhuman monster” that must be “utterly destroyed”:33
To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human and declaring him an outlaw of humanity.34
And yet once we juxtapose the universal criminal to Schmitt’s universal enemy as the world’s dehumanized outcast, it becomes apparent that his argument on the nexus of humanity and enmity does not reveal the political features of humanity as such. Examining the figure of the criminal against humanity shows that Schmitt’s discussion of humanity receives its coherence from—and is hence dependent on—his commitment to the principle of enmity as a political ordering principle. This distinction between the “criminal against mankind” and the “enemy of mankind” therefore shows that Schmitt’s political theory of enmity remains silent on the connection between criminality and humanity, such that theorizations of the “enemy of mankind” cannot inform analyses of the “criminal against humanity.”35 Conflations of the two obscure how the meaning of “humanity” is malleable, depending on its conceptual contexts. David Luban’s conflation of the two distinct figures
is hence as common as it is misconceived when he writes that crimes against humanity “are so universally odious that they make the criminal hostis humani generis an enemy of all mankind.”36 But we must resist this conflation in order to gain a nuanced picture of the uses of “humanity” in political argumentation, because vocabularies of humanity do not necessarily entail the exclusion and attendant dehumanization of those placed at the margins of the universalist scope of mankind. Crime and punishment occur within the symbolic universe of a legal or normative order, which renders the criminal a normatively legible figure who inhabits a clear position within this normative order. Far from being humanity’s dehumanized outlaw who is pushed beyond all human recognition, the “criminal against humanity” remains a member of mankind by way of her recognizable standing within the law claiming to govern all of humanity, including the offender against humanity. The offender against humanity holds a recognizable position within mankind’s normative order precisely by virtue of being legible as the breaker of its laws. She thus remains a figure internal to the symbolic order of mankind. This minimal, hegemonic inclusion of the universal criminal as a key distinction between enmity and criminality informs different takes on order and justice in international politics as seen through the conceptual lens of “humanity.” These different takes can roughly be sorted into positions supportive of either stable anarchy or legitimate hierarchy governing international politics.
The hierarchical relationship that attends this “criminal inclusion” comes to light in Schmitt’s discussion of criminality in international politics in The Nomos of the Earth, where he engages the contrast between enmity and criminality in greater nuance, even if with reference to critiques of just-war thinking rather than to “humanity” as such. He argues against the criminalization of aggressive warfare, that is, against the “crime of (going to) war.”37 His major concern is the deterioration of the figure of the justus hostis into a criminal to be pursued and punished in a “just war” and, accordingly, the demise of the institution of “regular” warfare or “war in form.”38 To Schmitt, war as a legal institution could take place only between sovereigns as formally and legally equal partners.39 The equal status among enemies at war is the conditio sine qua non of international law, such that the “discriminatory concept of war” that turns an enemy into a “felon” ceases to qualify as war altogether.40 Injecting political hostilities with considerations of a justa causa along the lines of just-war thinking annuls equal enmity and thereby transforms war from a matter of international law into a punitive endeavor
targeting the aggressor as a criminal, which falls beyond international law altogether.41
Given his attachment to the anarchic equality between enemies as the source of stability for international politics, Schmitt could scarcely be any clearer about the hierarchy definitive of criminality. The overriding of the equal status among enemies in the name of normative ideals is, to Schmitt, tantamount to removing the checks on the ferocity of armed hostility that enmity provides. Once compromised by the assignment of a normatively inferior status (in the form of criminal guilt) to a party to the conflict, warfare reaches new levels of intensity. He remarks with regard to early modern justwar theories: “The enemy became a criminal, and the rest—the deprivation of rights and the plundering of the opponent, i.e. destruction of the concept of the enemy . . . —followed as a matter of course.”42 By contrast, Schmitt explicitly attributes the “bracketing” of “war in form,” and its attendant rationalization and humanization, to the uniqueness of the European spatial order as one between territorially consolidated sovereign states.43 He argues that it was the legal formalization of territorial sovereignty that enabled the justus hostis as the foundational subject of international law.44 Crucially, Schmitt is outspoken in his argument that the successful debunking of justwar thinking, along with the attendant tempering of hostilities’ destructiveness, is the outcome of an international law that is anchored in Europe’s geopolitical order, which was entirely dependent on what Schmitt calls “the background of vast free spaces,” the “non-European soil of the rest of the earth” that was “open for European land appropriations.”45 Schmitt presents the symmetric relations between European territorial states as equal enemies against the distinct backdrop of the asymmetric relationships between European sovereigns and “non-European princes and peoples.”46 He also pegs to this asymmetry the exercise of excessive violence against “princes and peoples” in “colonial wars [that] are pursued against ‘wild’ peoples” and that surpassed in “brutality” the European “wars in form.”47 This is not to say that Schmitt identified colonial wars as punitive actions or police actions.48 Instead, what is important for us is that Schmitt highlights the signature hierarchy that attends both the casting of one opponent as a criminal and the hierarchy that pertained between European actors and non-European societies and polities.
Although Schmitt does not make the particular argument that both kinds of hierarchy typically occur together, cases under study in the pages to follow do display their union. The appeals to universal criminality that are under
scrutiny here lay claim to the legitimacy of normative hierarchy in international relations, which receives its justification for foreign coercion directly from the claimed violation of the universal norm itself, rather than from any other preexisting empirical relationship, such as custom, conquest, or consent. Considered through the lens of universal crime, world politics is not about anarchic encounters between equals; rather, it is more about claims to a legitimately hierarchical relationship between those called offenders and those calling themselves enforcers of mankind’s universal law. While effectively and substantively unequal, each encounters the other within the same normative scale dictated by the norms defining humanity as a collective subject of world politics. Yet this conceptual lens does not produce the inhuman outlaw that Schmitt fears while thinking from within his attachment to enmity. The universal order of humanity that is claimed to be violated envelops even those allegedly offending mankind in its scope. As a result, Schmitt’s theory of enmity cannot claim unrivaled authority over the political stakes of humanity. Moreover, his now-popularized appraisal of the exception as a moment of politics uncontaminated by law cannot capture the politics of humanity waged precisely through appeals to different sets of norms and laws.49 Schmitt’s writing on the exception has also inspired arguments that conceive of juridification and indeed criminalization as tools of depoliticization.50 Against this view, I argue that it is precisely this normative quality of appeals to humanity, if articulated via the concept of crime, that sustains its political dimension. The humanity invoked via universal crime is necessarily contested, because the concept cannot refer to an actual, empirically verifiable community of mankind. Crimes or offenses can only be committed against norms, not against facts. Air travel is not a crime against gravity, because gravity is a fact of nature.51 Positing a humanity that is universally offended therefore makes a normative claim that presents the concrete, factual circumstance it denounces in an irreducibly contentious way. Arguments maintaining that mankind can be injured by the contravention of universal norms hence rely on a fundamentally normative imagination of mankind that exceeds its articulation as an empirical collective political subject. This is so because the communal aspect of the concept of crime does not require that the community as a whole be empirically or physically injured by a crime. For instance, murder is a crime in municipal law not because all members of the national political community are actually aggrieved, but because murder disrupts one of the fundamental norms that constitute the normative fabric of this community. Similarly, the international law of
