How Can a Crime Be Against Humanity? Philosophical Doubts Concerning a Useful Concept
20 Pages Posted: 20 Feb 2007 Last revised: 29 Oct 2013
This paper offers a fresh look at some philosophical problems concerning the tenability of the concept of crime against humanity, as it developed since WWII. It frames these concerns through the tension between two approaches. One is to try and take the concept seriously - semantically, metaphorically, and indeed, on a realist theory of language, ontologically. This means that the concept signifies a category of the human condition whose treatment in the context of specific historical moments allows for a new normative language, irreducible to that of traditional jurisprudence. The other, legal realistic or pragmatist approach, is more comfortable with a language of functional fictions. It examines the usefulness of the concept in promoting the political goals set by a democratic society and critiques its ideological biases, rather than strive for metaphysical validity. These approaches - ascribed to traditions tracing to Kant and to Nietzsche, respectively - are analyzed and traced in the doctrines and institutions of international criminal justice. The study then uses the 1984 Barbie trial in France to illustrate the tenuous relations between crimes against humanity and other jurisprudential categories and classifications. By invoking work by Arendt and Finkielkraut it proposes to shift the emphasis to crimes against humanness. By studying recent developments in the international law of crimes against humanity (including the Rome Treaty, ICC, ICTR and ICTY), the study concludes that Arendt's theory of crimes against humanity, developed against the backdrop of the Eichmann trial, has in fact little influence on international law in this area, which is better rationalized by the legal realist school than by approaches that, like Arendt's, sought metaphysical validation and justification.
Keywords: International law, Arendt, political philosophy, crime against humanity, legal realism, legal pragmatism, Barbie, the Rome Treaty, ICC, ICTR, ICTY
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