Evil, Law and the State: Perspectives on State Power and Violence (At the Interface Probing the Boundaries 24) (At the Interface Probing the Boundaries)

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Contents Introduction Chapter 1

ix Pain, Interrogation, and the Body: State Violence and the Law of Torture John T. Parry

Chapter 2

“Too Many Foreigners for My Taste”: Law, Race and Ethnicity in California, 1848-1852 Fernando Purcell

Chapter 3

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Mental Health Care During Apartheid in South Africa: An Illustration of How “Science” Can be Abused Alban Burke

Chapter 8

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Exception as the Norm and the Fiction of Sovereignty: The Lack of the Right to Health Care in the Occupied Territories Dani Filc and Hadas Ziv

Chapter 7

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Adding Injury To Injury: The Case of Rape and Prostitution in Turkey

†·tar Gözaydn Chapter 6

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Sin, Scandal, and Disaster: Politics and Crime in Contemporary Turkey Ruth A. Miller

Chapter 5

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Protection, Harm and Social Evil: The Age of Consent, c. 1885-c. 1940 Shani D’Cruze

Chapter 4

1

87

Schistosomiasis and Capital Marxism Rui Zhu

101

Contents Chapter 9

The Inevitable Impunity of Suicide Terrorists Elena A. Baylis

Chapter 10

The Lessons of Nuremberg and the Trial of Saddam Hussein Douglas J. Sylvester

Chapter 11

173

The Execution as Sacrifice Jody Lyneé Madeira

Chapter 15

159

New Balance, Evil, and the Scales of Justice Vincent Luizzi

Chapter 14

143

Humanity and Inhumanity: State Power and the Force of Law in the Prescription of Juridical Norms Roberto Buonamano

Chapter 13

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Responsibility for Atrocity: Individual Criminal Agency and the International Criminal Court Kirsten Ainley

Chapter 12

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183

Legitimacy and Violence: On the Relation between Law and Justice According to Rawls and Derrida Bram Ieven

Notes on Contributors

199 211

Welcome to an At the Interface Project Evil, Law and the State is an inter-disciplinary and multi-disciplinary research project which seeks to explore issues surrounding evil and law, with a focus on state power and violence. Perspectives are drawn from those engaged in any field that touches on the study of law and legal culture: anthropology, criminology, cultural studies, government/politics, history, legal studies, literature, philosophy, psychology, religion/ theology, and sociology, as well as those working in civil rights, human rights, prison services, politics and government (including NGOs), psychiatry, healthcare, and other areas. The key themes being explored by the project are: x

when and why is law evil or a source of evil?

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state violence and coercion

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justifications for punishment, including capital punishment

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whether and under what circumstances the adversary or inquisitorial models of legal process generate, tolerate, or allow evil outcomes

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issues of distributive justice in law, including distributing the costs of legal error

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the intersection of law with issues of choice, responsibility, and diminished responsibility

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state responsibility for terrorism, war, intervention, ethnic cleansing, and other problems of international law and international relations

‘At the Interface’ projects aim to bring together people from different areas, backgrounds, and interests to share ideas and explore various discussions which are innovative and exciting. Behind the rationale of the each project is the idea that learning and reflection is best conducted through an interactive process which engages in mutual and reciprocal dialogue. Dr Robert Fisher Inter-Disciplinary.Net http://www.inter-disciplinary.net

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Introduction The topic of “evil” means different things depending upon context. For some, it is an archaic term, while others view it as a central problem of ethics, psychology, or politics. Coupled with state power, the problem of evil takes on a special salience for most observers. When governments do evil – in whatever way we define the term – the scale of harm increases, sometimes exponentially. The evils of state violence, then, demand our attention and concern. Yet the linkage of evil with state power does not resolve the underlying question of how to understand the concepts that we invoke when we use the term. Instead, the question becomes what evil means in the context of and in relation to state power. One approach to this question is to invoke the law. Governments, one might argue, can be constrained in their use of violence by law. When these constraints seem to work, we often describe the result as “the rule of law.” But the rule of law is not an abstract, apolitical, and neutral thing. It results from a complex interaction of forces, so that rule of law ideals and claims that the rule of law actually exists can take a variety of forms. Indeed, under some approaches, one can assert with confidence that repressive regimes are consistent with the rule of law precisely because their policies follow legal forms. Law, then, does not solve the problems of state violence and evil; it merely provides another arena for inquiry, and another set of questions. The fifteen essays in this book share a concern for these issues. Drawn from a broad array of papers presented at a conference on Evil, Law, and the State, held at Mansfield College, Oxford in July 2004, they bring multiple perspectives to bear on the problems of state-sponsored evil and violence, and on the ways in which law enables or responds to them. The approaches and conclusions articulated by the various contributors sometimes complement and sometimes stand in tension with each other, but as a whole they contribute to our ongoing effort to understand the characteristics and workings of state power, and our need to grapple with the harm it causes. The collection begins with my essay, “Pain, Interrogation, and the Body: State Violence and the Law of Torture,” which has two overlapping goals. First, I provide an overview of the complex and incomplete ways in which law responds to state violence, with a focus on the problem of enforcement. Law cannot constrain the violence of the state if it cannot be enforced, yet courts depend upon state power to enforce their decisions. The predictable result is that law often fails to confront or manage state violence. Second, I make these issues concrete through a discussion of the law of torture. I contend that international and domestic laws (using the law of the United States as an example) fail to control or prevent – or even to outlaw – torture, despite the widespread view that torture is absolutely forbidden. The critical move here is the recognition that legal meanings are often intentionally cramped, so that the forbidden category of “torture” fails to cover large areas of violent state action. Chapter Two, “‘Too Many Foreigners for My Taste’: Law, Race and Ethnicity in California, 1848-1852,” by Fernando Purcell, discusses the ways

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in which Anglo-Americans used legal process – both state-sanctioned and vigilante – to discriminate against non-whites and especially against Mexicans and Chileans in the California gold fields. For example, Purcell considers cases of lynching, which was predominantly directed against nonwhite foreigners by popularly-appointed judges and juries. These extralegal tribunals appeared because of many authorities’ lack of legitimacy and power or simply because in many cases authorities did not exist. More legitimate forms of process also supported the racial agenda, as when the state of California imposed special taxes on “foreign miners” and denied non-whites the right to testify in court. Purcell’s larger goal is to explore the ways in which “racial and ethnic discrimination have been attached to many processes of state formation in the last centuries,” as well as to highlight the complicity of ordinary citizens in the formation of laws that permit violence and discrimination. The next chapter is the first of three in which issues of gender and sexuality play important roles. In “Protection, Harm and Social Evil: the Age of Consent, c. 1885-c. 1940,” Shani D’Cruze considers the legal history of the age of consent in cases involving sexual activity by or sexual assault of teenagers and adolescents. She sets out the ways in which identifying the “evil” or “outrage” in such cases is problematic. Evil appeared sometimes in the provocative sexuality of the young person, sometimes in the man (or very occasionally woman) accused, but it was often more diffusely located. Age of consent legislation was intended as much to address wider conceptions of social evil as much as to protect young people and children. Cases applying this legislation contested contradictory conceptualizations of the child as sexually innocent or as sexually knowing, as in need of care and protection or in need of discipline and control. In these decisions, courts differentially emphasized both punishment and welfare. Through this analysis, D’Cruze highlights changes and continuities in the discursive frameworks framing expert, judicial, and popular knowledges about sexuality, youth, and consent. In Chapter Four, “Sin, Scandal, and Disaster: Politics and Crime in Contemporary Turkey,” Ruth Miller begins with a discussion of the devastating 1999 earthquake in western Turkey. She explores the narratives of blame that emerged from that event and reveals how they coalesced around corrupt contractors whose buildings collapsed, leading to the deaths of thousands. Yet the nature of this blame was curious, because it focused less on the deaths caused than on the damage done to the state. Miller goes on to link this assessment of blame to the “Susurluk” political scandal and discusses the ways in which even the concept of deviant sexuality has been co-opted by a discourse of state purity. Put differently, Miller demonstrates and explores the ways in which crime is constructed as an attack on the modern Turkish state. She further suggests that this phenomenon is not limited to Turkey but rather is symptomatic of modernity in general. Chapter Five, “Adding Injury to Injury: The Case of Rape and Prostitution in Turkey,” by †·tar Gözaydn, discusses a different aspect of

Introduction

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contemporary Turkish criminal justice. Gözaydn explores changes in Turkish rape law from 1926 to the present, with a focus on former Article 438 of the Turkish Penal Code. She particularly considers the statute’s application to prostitutes, which in turn often involved the use of lesser charges or the imposition of lesser punishments because of their status. From this vantage point, she also considers the history of the women’s movement in Turkey and the interlocking ways in which modernity and womanhood have been described in relation to the Turkish state. The next three chapters share a concern with public health. In “Exception as the Norm and the Fiction of Sovereignty: The Lack of the Right to Health Care in the Occupied Territories,” Dani Filc and Hadas Ziv use Carl Schmitt’s and Giorgio Agamben’s concepts of sovereignty and the state of exception to explain Israel’s health care policies in the Occupied Territories. Under their analysis, limits to freedom of movement, lack of access to health care, and the reactions of Israel’s authorities and judiciary system make plain that the state of exception has become the norm in the Occupied Territories, and Palestinians have become what Agamben termed homines sacri. Filc and Ziv detail how, when the state of exception becomes the rule, the limits between the state of law and the state of violence become blurred. The result, they argue, is that Israel has built a fiction of Palestinian sovereignty to maintain a permanent state of violence. Chapter Seven, “Mental Health Care During Apartheid in South Africa: An Illustration of How ‘Science’ Can be Abused,” by Alban Burke, describes state manipulation of the mental health system under apartheid. Burke highlights the “scientific” basis of apartheid and the ways in which its scientific dogmas became law. For example, he discusses the Involuntary Commitment Law of 1973, which allowed the government to detain people for a legally unspecified period of time without either their families or they themselves knowing where they were. “Idle or undesirable” Black South Africans were committed to mental institutions for various reasons, such as if they broke curfew, went to a general hospital seeking medical treatment and were subsequently admitted to psychiatric hospitals, or were classified as dissidents. To hold the thousands of people who had been committed, disused mining camps were turned into psychiatric facilities. Burke also explains the complicity of mental health professionals in these practices and their continued “shamelessness” about the practice and ongoing effects of apartheid. In Chapter Eight, “Schistosomiasis and Capital Marxism,” Rui Zhu reveals the public health effects – an explosion of schistosomiasis, or liver fluke disease – resulting from the construction of the Three Gorges Dam in China. In the process, Zhu describes a particular aspect of the relationship between evil and state power. The construction of the dam led to an increase in the disease, but the government of China failed to take responsibility for the outbreak. Yet the government has not been indifferent to the spread of the disease; to the contrary, it has dedicated resources to combating it. As Zhu

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observes, this creates a perverse “win-win scenario” – the government of China benefits economically from the dam and also, by failing to admit its responsibility, wins praise for its commitment to public health. Zhu uses this episode to provide more general comments about the current socio-political climate in China, which he calls “Capital Marxism.” With Elena Baylis’ essay, “The Inevitable Impunity of Suicide Terrorists,” the book shifts to a consideration of international law, crimes against humanity, and the “war on terror.” Baylis directs her concern at the claim that suicide terrorists are immune from the ordinary deterrent effects of the criminal process: because they expect to die, the prospect of punishment means little to them. She posits that this impunity drives claims that the criminal process is incapable of dealing with terrorist crimes. Rather than turn to military solutions, Baylis suggests a renewed focus through the criminal law on terrorist organizations. Although those who commit terrorist acts may be undeterrable, their leaders are likely to respond to the incentives created by effective law enforcement. Baylis closes by discussing the need for careful application of this strategy in order to avoid assertions of collective responsibility against the religious or national communities that most terrorist groups claim to represent. In Chapter Ten, “The Lessons of Nuremberg and the Trial of Saddam Hussein,” Douglas Sylvester considers the controversial practice of trying defeated heads of state for war crimes. As Sylvester notes, such trials are often derided as “victor’s justice,” with the corresponding suggestion that they are illegitimate. In response, proponents go to great lengths to ensure that principles of due process are applicable at all stages of the proceeding. Yet the resulting trials are extraordinarily time-consuming and all too liable to be hijacked by defendants who use the process as an opportunity for “personal and political grandstanding.” Sylvester proposes a novel solution to this quandary. Instead of trying to replicate the ordinary criminal process, he urges a frank recognition that these trials are political spectacles at which the result is usually foreordained and the goal is less a conviction than it is a desire to create an accessible historical record. Sylvester seeks to force a reconsideration of what criminal justice means in this context and, more importantly, what the international community should aim to achieve with these trials. Chapter Eleven, “Responsibility for Atrocity: Individual Criminal Agency and the International Criminal Court,” by Kirsten Ainley, explores “the shift in international political discourse away from assigning responsibility for political violence to states and towards assigning criminal responsibility to individuals” – a move that she finds problematic. She then considers the ways in which individual agency is defined in international criminal law, specifically the Rome Statute of the International Criminal Court. Ainley’s conclusion is that the Rome Statute “provides an internally inconsistent concept of the individual: at times seeing the person as a free and rational actor, independent of social role and culture, but conversely requiring

Introduction

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that some persons (the victims) are entirely defined by their social role or group membership.” While she recognizes the forces that led to this contradictory approach, Ainley predicts that the result of the Rome Statute will be neither prevention nor satisfactory justice. The final four chapters of the book provide broader theoretical perspectives on the problems of evil, law, and state power. Roberto Buonamano’s contribution, “Humanity and Inhumanity: State Power and the Force of Law in the Prescription of Juridical Norms,” is “a preliminary attempt to analyze the problem that history creates for the discourse of human rights.” Buonamano begins with the paradox of human rights – the fact that they always depend upon the existence of a political community. From there, he considers how the subject of rights has been constructed in relation to sovereignty and state power. Buonamano is particularly concerned with the transformation of the rights-holder from “man” to a larger but more amorphous conception of humanity. At this stage, human rights become international, yet Buonamano insists that they remain tied to the nation state, so that they stand as “an effect of the form of power exercised within the institutions of the modern liberal state and through the instrument of international law.” Chapter Thirteen, “New Balance, Evil, and the Scales of Justice,” by Vincent Luizzi, asks us to consider overhauling our response to crime so that the emphasis is on the offender’s doing good instead of doing bad to the offender. Luizzi’s proposal – which he terms “new balance” – reflects the influence of therapeutic and restorative justice approaches to criminal justice that de-emphasize retribution and doubt the efficacy of extended incarceration. At bottom, however, Luizzi claims a pragmatic justification – the need for “creative, experimental solutions to problems,” in order to ensure better “practical consequences.” Luizzi then raises the stakes by considering whether such an approach is at all viable in dealing with acts of extreme wickedness, terrorism, or crimes against humanity. To convince skeptics, he provides a detailed “life sentence” for a perpetrator of genocide that includes a variety of activities designed to reform the offender and provide material assistance to victims. In Chapter Fourteen, “The Execution as Sacrifice,” Jody Madeira analyzes the execution – capital punishment – as a ritual in an attempt to understand its redemptive potential. Madeira seeks to unite René Girard’s theory of primitive sacrifice with a more nationalistic theory of execution. She highlights the function of execution as a ritual killing, including the processes of victim selection and ostracization. Sacrifice, moreover, is founded upon redemption. Madeira focuses upon execution’s redemptive and purifying functions, and how these functions are fulfilled by participants such as witnesses, jurors, and the media. She then applies this theoretical framework to the 2001 execution of Oklahoma City Bomber Timothy McVeigh. She concludes by questioning whether executions are truly as “visible” to witnesses as they first appear to be.

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The final chapter, Bram Ieven’s “Legitimacy and Violence: On the Relation between Law and Justice According to Rawls and Derrida,” returns to some of the themes touched on in the first chapter. Ieven is concerned about the use of force to make law work, or, more precisely, with the force that is legitimate as opposed to the force that is merely violence. He begins with the problem of violence that founds law as opposed to the more easily legitimized violence that maintains law. Ieven focuses first on Rawls, who ultimately claimed that legitimacy is based on consistency with an overlapping and reasonable consensus within a society, and then on Derrida, who insisted on a difference between law and justice, where justice provides a basis for deconstructing law and critiquing violence. For Ieven, justice and legitimacy are not matters of theory alone but of interpretation, of contingent practice in the world. With his focus on interpretation, contingency, and practice – and his concern for legitimacy – Ieven draws the various themes of this book together, so that readers come full circle while also, I hope, appreciating in new ways the issues and problems of evil, law, and the state. As a way of concluding, I want to thank series editor Rob Fisher and the contributors to this volume for their insight and responsiveness as this project was assembled. I also want to express my gratitude to all of the participants in the Evil, Law, and the State conference, who collectively created an atmosphere of engaged and productive scholarly inquiry. This volume is dedicated to all of them. John T. Parry Portland, Oregon February 2005

Chapter 1 Pain, Interrogation, and the Body: State Violence and the Law of Torture John T. Parry Near the middle of Thomas Mann’s novel, The Magic Mountain, is a chapter titled “Snow.” The protagonist, Hans Castorp – whom Mann goes out of his way to describe as a thoroughly ordinary young man – has been caught throughout the novel in a debate about civilization, violence, law, and values. In “Snow,” Hans tries to leave the debate behind by going skiing. He gets lost in a blizzard, stops at a makeshift shelter, and falls into a stupor. He then has a vision of an ordered, egalitarian, happy, and peaceful country whose people demonstrate love, nobility of spirit, mutual concern and deference. But amidst the landscape is a complex of columned buildings and porticos – a temple, but perhaps too a place in which secular authority resides. Hans makes his way to the middle of the complex, and his vision of peace and love changes to one of horror. Two half-naked old women – crones or priestesses – are tearing a baby into pieces and eating it. Hans stumbles, falls, and wakes from his dream. He vows to remember and draw a lesson from the vision, but by the time he returns to his lodgings, he has forgotten it.1 There are many ways to think about this episode. I want to read Hans’ dream as a myth about civilization, an assertion that violence and death are always present under the trappings of order and peace. Going further, the murderous crones inside the temple suggest that violence is not just present but is necessarily at the heart of our governing structures. Finally, Hans’ reaction to the vision suggests that even when brought face to face with this possibility, we are unable to accept it for very long – that we forget it because we have to, because the violent foundations of civilization are too terrible to affirm. The rest of this paper will grapple with these possibilities. 1.

Private Violence and State Violence Violence is a persistent threat in our lives. Organized state violence responds to and protects us from private violence and the violence of other states. In political theory terms, one might think of Hobbes’ account of government as the solution to a state of nature in which life is nasty, brutish, and short. State violence is not, of course, the only protection we have. Custom, friendship, good faith, ideas of justice, morality, and religion – all play a role in regulating or controlling violence. But state violence or the threat of state violence is particularly effective. One reason may be that most responses to private violence implicitly or explicitly promise consequences of one kind or another, such as shunning, unwillingness to deal with that person in the future, stigma, and damnation, and so they impose a degree of

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deterrence. Among these responses, the threat of violent punishment is a particularly powerful deterrent. So far, however, we have only the violence of the state opposed to private violence and the violence of other states, which by itself provides limited cause for rejoicing. Without more, the violence of our own state is no better than other forms of violence; it may sometimes be useful to us, but it may also harm us. And precisely because it comes from the state, it will usually be more systematic, sustained, and powerful than other forms of violence. State violence thus raises the threat of – indeed, it actualizes – tyranny and repression even as it holds out the possibility of protection, and the tyranny of state violence could be more destructive than the anarchy of private violence. Moreover, state violence often manifests itself on the bodies of individual members of a community and even more on the bodies of outsiders. State violence thus protects and makes space for creative or productive activity, but it also causes physical pain, mental anguish, and palpable injury. The policeman’s stick, the soldier’s gun, and the tools of the interrogator leave visible or internal marks on people’s bodies and psyches. When we talk about state violence, whether in positive or negative terms, we must be careful to keep in mind what that violence produces. 2.

Law and the Effort to Control Violence Law is one of the tools that help regulate the state’s use of violence to maintain social order. Marsilius of Padua contended long ago that law is “a command coercive through punishment or reward.”2 It seeks to change human behavior; it asserts authority over our lives and sometimes even asserts authority over authority itself. As Robert Cover observed, “A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life.”3 Yet as the stakes increase in legal disputes, the less likely people are to endure an adverse result solely from a commitment to the rule of law. People obey the law for a variety of reasons, but surely one of those reasons is that the law will be enforced. As Cover said about the criminal process, The act of sentencing a convicted defendant is among the most routine acts performed by judges. . . . If convicted, the defendant customarily walks – escorted – to prolonged confinement, usually without significant disturbance to the civil appearance of the event. . . . There are societies in which contrition or shame control defendants’ behavior to a greater extent than does violence. . . . But I think it is unquestionably the case in the United States that most prisoners walk into prison because they know they will be dragged or beaten into prison if they do not walk.4

John T. Parry

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Cover’s observation holds for ordinary civil cases as well. If a defendant loses a contract case and refuses to pay the judgment, that judgment will ultimately be put into effect through force. No matter how civilized a society deems itself, its laws rely on guns.5 Worth noting here is that this account appears to create problems for international law. Can we even speak of international law as law if – as is often the case – there are no formal mechanisms to enforce it? Yet despite the lack of formal enforcement, most nations appear to obey international law most of the time.6 Indeed, the fact that international law is often obeyed despite the lack of formal enforcement threatens my account of law. If individuals and states obey rules for reasons apart from the threat of enforcement, then “law” is more than rules that are enforced; it also includes rules that are obeyed. Note that this broader account makes law more amorphous by overlapping it with social norms, morality, and other sources of rules.7 In many ways, that overlap is accurate, particularly if we want to speak generally of the various ways in which social forces shape and constrain behavior. Under this account, international law, which at the very least is an important source of constraining norms, easily qualifies as law. Yet norms cannot guarantee compliance. The distinction between willing obedience and formal enforcement remains critical if we turn from the law-abiding and focus on those who resist law. Oliver Wendell Holmes, Jr. famously asserted, “If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict.” For Holmes, a statute that could not be enforced “would be empty words”; from the bad man’s perspective, “[t]he prophecies of what the courts will do in fact, and nothing more pretentious, are . . . the law.”8 Now return to international law, especially the issue of international human rights. Do nations obey international human rights law? Oona Hathaway’s research on this issue led her to the conclusion that “noncompliance with treaty obligations appears to be common.” Indeed, she was unable to find “a single treaty for which ratification seems to be reliably associated with better human rights practices.” To the contrary, she identified “several for which it appears to be associated with worse practices.” In other words, Hathaway could not find a positive correlation between law and behavior in the area of international human rights. Many countries abide by the norms of international human rights law, but many do not, and whether or not a country follows these norms appears to have little to do with whether that country recognizes those norms as formal international law.9 From the perspective of the Holmesian bad man, the status of international human rights norms as law is uncertain at best.

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The Limits of Law’s Power over State Violence State violence simultaneously protects and threatens us. To manage state violence, we rely in part on law. Yet law depends on the very violence that it is meant to control. Enforcement, after all, requires state power. If law depends on state violence, how can it also hope to control it? One way to resolve this tension is to deemphasize what we expect from law. We could resign ourselves to the fact that law is often little more than the tool of authority, a ritual for channeling state violence rather than controlling it. Examples abound in history and the contemporary world. Indeed, much of criminal law today remains a forum for the ritualized application of state violence, albeit with greater regulation than in the past.10 Perhaps, then, we should conclude that the ideal of law as a significant constraint on state power is a peculiar development of western politics and political theory. A thinner or lowest common denominator account of law might not seek so insistently to tear law away from the authority that provides its power. Most readers, I imagine, will reject this thin description. Law, you might insist, should not only resolve disputes but must also regulate the state’s use of violence. Yet that view requires law to have a double conscience as servant and master of state violence. Sometimes law is up to the task of mastering state violence. The Bivens doctrine, which allows people to sue U.S. officials for damages arising from violations of constitutional rights, is one example – although federal Courts have shown uncertain commitment to it. The recent decisions of the United States Supreme Court, insisting that the Executive branch cannot detain people indefinitely without judicial review, demonstrate that courts can confront even military authority – albeit, in these cases, somewhat halfheartedly.11 Legislators sometimes craft statutes that limit the state’s power to wield violence or that allow people to receive compensation for injuries inflicted by state actors. But law often shows itself to be the servant of the violent state. During World War II, the U.S. Supreme Court upheld blanket curfews and internment of Japanese-Americans, without regard to their individual guilt or loyalty. The U.S. Congress’s adoption of certain provisions of the U.S.A. Patriot Act provides a recent legislative example. Or, again in the context of U.S. law, consider the failure of federal courts to confront police violence in minority communities, failures that are often cloaked by the claim that the courts lack jurisdiction to hear claims that might force the reorganization and oversight of police departments.12 One consequence of law’s reliance on state violence for its effectiveness is that law must often defer to that violence. It cedes to the state the power to act lawlessly in some instances in order to preserve the greater power to regulate private violence and some aspects of state violence. So far, I have been speaking of law as if I believed that erecting a better network of laws could itself protect us from the evils of state violence.

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(As if, for example, Robert Bolt’s Thomas More were correct that the forest of laws is what protects us from the devil.13) But it is misleading and perhaps even false to think of law this way. In the United States, for example, the legal realists reminded us decades ago that law is not autonomous. It has no independent existence. It is not something that we extract from pure reason, or from fundamental, established, and knowable principles. Law is a thing that we make and manipulate for our purposes. Nearly every rule has an exception, and every fact pattern raises the possibility of a different result even under a uniform rule.14 Doctrines are constantly changing, not for the sake of progress but simply through interaction with social forces and in response to skilled arguments. The malleability and manipulation of law often favors state violence. Officials are usually ready to seek, and courts are only slightly less willing to create, expanded executive power. The memos drafted by U.S. government lawyers asserting nearly unlimited executive power in what they call a “war on terror” and seeking to rationalize sweeping abuse of prisoners show how far a government often defined as democratic and rights-enhancing will reach.15 And, too, when a government makes the argument, courts are willing to hear claims of necessity – that public order, the survival of the state, or protection against “terrorism” require or justify a particular course of conduct, with the claimed result that courts should declare the that conduct to be legal. Yet law can also be manipulated by ideas of morality and justice. Necessity claims in this context can limit state power by ratifying individual acts that violate the law for “good” reasons. The problem with these claims is that we have trouble defining those good reasons. Clear, objective, external reference points are in vanishingly short supply. All we know is that legal controversies will result in decisions, and that legal doctrine is always changing, but we cannot assume that some conception of “justice” or the “best” legal rule will prevail. All of this is just to say what we already know. In the face of state violence, law often fails, and it fails because as a human product dependent upon human agency it is set up to fail. We cannot depend on legal rules or norms as such, because they are only tools, not solutions. Nor, if this is true, can we claim that our willingness to obey the law turns on the link between law and some rough degree of justice or morality. Even when this link is absent, the threat of enforcement will be sufficient. Law, then, compels our obedience but only fitfully regulates state violence. 4.

Interrogation and Torture I’d like now to use the law of torture and interrogation to provide a concrete example of my claims about state violence and law – in particular my claim that law fails to control state violence. Interrogation is a core problem for those seeking to control state violence. It presents issues of persuasion, pressure, coercion, and physical or

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psychological harm. Interrogation of a criminal suspect is rarely gentle even if it appears calm and orderly. On the surface, at least, it is about extracting information, which requires control, even dominance. An interrogator is often – perhaps must be – willing to use the suspect, to approach him as a vessel to be emptied rather than as a person possessed of dignity and rights and entitled to equal concern and respect (although a skilled interrogator may disguise this attitude).16 The temptation exists to go just a step further, to get just one more piece of information, to make the interrogation just a bit more uncomfortable. When the information is important enough, incremental discomfort may slide into torture. The reaction to the September 11 attacks illustrates this dynamic fairly easily. Within two months, federal officials were already starting to talk about the need to develop new, more lenient standards for interrogating suspected terrorists. Several commentators – myself included – explored the extent to which coercion could be justified in rare cases.17 That conversation continued among government officials whose concern was not to control state violence but rather to unleash it. And we can see the results of that conversation on people’s bodies at Guantanamo and in Afghanistan and Iraq. All of this took place against a web of international and national laws that claim to prohibit torture absolutely. The Convention Against Torture declares that torture is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” by state actors to obtain information, to intimidate or punish, or “for any reason based on discrimination of any kind.” The Convention also binds signatories “to prevent . . . other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture.”18 The Convention does not define “cruel, inhuman or degrading,” but the United Nations has said that the phrase “should be interpreted so as to extend the widest possible protection against abuses, whether physical or mental.”19 Domestic law in most countries also appears to ban torture. In the United States, the use of coercion in interrogation violates the victim’s constitutional right to due process and may violate her right against compelled self-incrimination. Law enforcement officials who use excessive force in the course of “seizing” a person violate the Fourth Amendment to the U.S. Constitution. Similarly, the unnecessary and wanton infliction of pain by correctional officials on a prisoner violates the Eighth Amendment’s ban on cruel and unusual punishment. Federal and state statutes criminalize conduct that meets the Convention’s definition of torture, as well as most conduct likely to qualify as “cruel, inhuman, or degrading treatment or punishment,” and other statutes or doctrines allow victims of state violence to seek damages.20 U.S. law’s prohibition of torture is supposedly so clear that the State Department was able to state flatly in 1999 that

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Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. . . . No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification for torture. U.S. law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a “state of public emergency”) or on orders from a superior officer or public authority.21 As with international law, in short, U.S. law seems to leave little room for coercive interrogation, even of suspected terrorists. Sandy Levinson recently observed that these layers of international, federal, and state law might “appear to establish a Ulyssean contract to be honored whatever the lure of the sirens.”22 But, as he recognized, if we dig a bit deeper, the terms of the contract become ambiguous. Many of the countries that have enacted law and signed multilateral agreements against coercive practices continue to engage in them, and the Abu Ghraib revelations confirm that the United States is one of that number (although the persistence of police violence in American cities would be sufficient proof). The most plausible explanations for this kind of conduct are that policymakers in these countries do not believe that the prohibition of torture has the status of law, that they simply care little about legal niceties, or that they believe their conduct was not torture or was justified under the circumstances. This last possibility generates further complexity. There are good reasons not to like the restricted definition of torture found in the Convention. I prefer something more expansive that acknowledges the fact that torture is about domination more than interrogation and that also includes an element of escalation, or the risk of it, so that seemingly mild mistreatment is torture if the victim reasonably believes worse will follow.23 But any definition of torture and of the distinction between torture and other categories of legal or illegal treatment must be applied to specific facts, which in turn will create ambiguity and controversy. The most famous case to examine the difference between torture and cruel or inhuman treatment is Ireland v United Kingdom. In the early 1970s, British forces subjected suspected IRA members to wall-standing for hours, hooding, continuous loud and hissing noise, sleep deprivation, and restricted food and water. The European Commission of Human Rights found that these practices, used together, amounted to torture, but the European Court of Human Rights disagreed. The court found that the British practices were

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inhuman and degrading but did not rise to the level of torture. The court explained that the difference between torture and inhuman treatment “derives principally from a difference in the intensity of the suffering inflicted.” Because torture is an “aggravated” form of inhuman treatment that carries “a special stigma,” it should be reserved for practices that exhibit a “particular intensity and cruelty.”24 Israeli interrogation practices – prolonged standing or uncomfortable sitting positions, tight hand or ankle cuffing, loud noise, sleep deprivation, hooding, cold rooms, and violent shaking – have also been the subject of significant international dispute. U.N. officials claimed these practices were torture, but with the exception of shaking, Israel’s conduct was not much different from that of the U.K. An Israeli commission concluded these practices were not torture, and it cautioned that interrogators should be careful not to cross the line from permissible physical force to impermissible torture.25 The Supreme Court of Israel ultimately prohibited most of these coercive practices, not because they were torture, but because they were not authorized by law. The court described several of these methods as degrading, harmful, or unnecessary, but it never suggested that they met any legal definition of torture. Significantly, the court also ruled that a justification defense would be available in individual criminal prosecutions of interrogators for using these methods.26 The British and Israeli cases highlight yet another complexity in the law of torture. The Convention bars torture absolutely. “No exceptional circumstances whatsoever, whether a state of war or threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” By contrast, the Convention requires states to “undertake to prevent” cruel, inhuman, or degrading treatment, but the “no exceptional circumstances” provision does not explicitly apply.27 Thus, if Britain’s and Israel’s former practices were not torture, an exceptional circumstances justification could be available under the Convention even if the conduct was cruel and inhuman.28 Put differently, the Convention forces us to ask whether a particular form of coercion is more like torture or more like cruel and inhuman treatment. If the former, it is illegal and unjustifiable. If the latter, it is probably illegal but possibly also justifiable. The consequences of this distinction provide one reason why officials will deny using torture while sometimes admitting to practices that are clearly coercive. So long as they are not “torturing,” their conduct, however reprehensible, may be justifiable under the circumstances, and those justification arguments have force in the court of popular opinion as well as in courts of law. The word “torture” thus carries not just a moral stigma but also very real legal and political consequences. The laws of individual countries add still more complexity. For example, in the course of consenting to the Convention, the U.S. Senate made

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two important changes to the definition of torture. Torture, according to the Senate, is not the intentional infliction of severe pain, but the specific intention to do so. In criminal law terms, to engage in torture, an interrogator must do more than take an intentional act that causes severe pain; instead, an interrogator must act with the purpose of causing severe pain. Second, the Senate narrowed the definition of mental harm by requiring it to be prolonged as well as severe, and by limiting the kinds of conduct that it was willing to recognize as able to create prolonged and severe mental suffering. This restricted definition also appears in federal legislation that implemented the convention. Finally, the Senate tried to give clearer content to the category of cruel, inhuman, or degrading treatment. According to the Senate, “the United States considers itself bound by the obligation . . . to prevent ‘cruel, inhuman or degrading treatment or punishment,’ only insofar as the term . . . means the cruel, unusual and inhuman treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”29 In other words, the Senate declared that the Convention bans conduct that is already unconstitutional, and its changes to the document show a desire to preserve room for coercive interrogation. Notably, the Senate’s statement that the definition of cruel, inhuman, or degrading treatment must be tied to the U.S. Constitution gives federal courts the ultimate power to define the government’s obligations under the Convention in the course of civil rights litigation and pursuant to the American practice of judicial review. A series of cases assessing the voluntariness of confessions suggests that these obligations could be broad. But the Supreme Court’s recent decision in Chavez v Martinez suggests a much narrower approach. Chavez was a damages case arising out of a 45minute emergency room interrogation of a severely wounded man – shot by police during a fight – who thought he was dying. Three of the Court’s nine justices said a claim for damages resulting from a coercive interrogation is governed by the “shocks the conscience” test, which considers whether the conduct at issue was not only shocking but also “unjustifiable by any government interest.” They declared that “the need to investigate whether there had been police misconduct constituted a justifiable government interest given the risk that key evidence would have been lost if Martinez had died [without telling] his side of the story.” At least two other justices also appeared to endorse this standard although they did not say how it would apply to a specific case.30 The critical point about Chavez is that a majority of the Court appears to have embraced a necessity standard for judging the constitutionality of coercive interrogation. Under this standard, if a sufficient government interest exists, then the victim has no constitutional right against coercive interrogation. Thus, we see again the pressure created by necessity. At least some coercive practices that would otherwise be illegal under

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international law or unconstitutional as a matter of U.S. law can be justified if the state can articulate a good reason for using them on a particular person. One last point about U.S. law. Necessity also surfaced in the memos prepared by Justice and Defense Department officials. The memos used necessity in the two ways I highlighted in my discussion of law’s malleability. First, they expressly recognize necessity as a defense to criminal liability, so that an official who used torture would be able to raise a necessity defense. Second, in a long section, they contend that the commander-in-chief power vested by the Constitution in the President of the United States in effect frees the President from the irritations of federal criminal law. Put clearly, the necessity of successfully exercising the commander in chief power during an armed conflict excuses or justifies the President, in advance, from compliance with federal law.31 In short, the seemingly absolute prohibitions of torture in international and U.S. law have hidden ambiguities and exceptions, which in turn create space for argument and manipulation – and for lawful torture. Most significant is the idea of necessity as a criminal defense and a justification for state violence. In the case of coercive interrogation, law prohibits some forms of state violence, subject to exceptions, limits or channels other forms, and in so doing legitimates coercive interrogation by state officials. 5.

Assessing Necessity I want to finish with a few thoughts about the necessity argument in the context of torture. Necessity or, as it is sometimes called, justification is a well-established but perennially controversial idea. Think of it as a safety valve that makes the rule of law possible but which is also hard to constrain. Necessity usually requires a balance of harms and interests, but the assessment is never as easy or as rule-bound as the metaphor pretends.32 The application of necessity to coercive interrogation provides a good demonstration. First, we must ask whether necessity can ever justify coercion, even torture. The easy answer is “no,” but if coercion provides the last remaining chance to save a large number of lives in imminent peril, can we so easily hold to an absolute ban? What if torture could save the life of a kidnapped parent, lover, or child? As with other crimes, the definition of torture includes the possibility, however remote as a matter of doctrine, of justification in individual cases.33 So much for a general answer. What about the conduct of U.S. forces in Afghanistan and Iraq? The photographs from Abu Ghraib and other reports demonstrate that much – perhaps most – of this conduct amounts to cruel and inhuman treatment and in some cases rises to the level of torture under the Convention. Is there a sufficient doctrinal justification for these practices? For several reasons, I think the answer is “no.” First, the reasons for the conduct of U.S. forces went beyond foiling future attacks. They sought

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to learn who was involved in or provided support for past attacks, to destroy entities that support those attacks, and to intimidate or pacify prisoners. These purposes do not justify torture so long as the necessity rationale requires torture to be a means of obtaining information to prevent imminent harm, as opposed to a tool of domination or overall military strategy. The same is true of cruel, inhuman, or degrading treatment. Although the level of necessity would be lower for what international law defines as a lesser harm, general claims of need are not sufficient. The necessity argument attains meaningful weight only when there is specific reason to fear an imminent attack. Second, even where the purpose of interrogation is to prevent future attacks, physical mistreatment should not receive a blanket justification. The future will bring more attacks on the U.S. and its allies, but without firm suspicion that a particular individual has specific knowledge about imminent attacks, policymakers and courts should be wary of making coercive interrogation an option. U.S. forces appear to have adopted a policy of physical coercion that applies to large numbers of detainees who almost certainly lack specific knowledge of future attacks. We have mistreated these detainees because they may have significant information, because they are hostile to us, or simply because we can. The repercussions of that treatment will last for years, perhaps decades, and are unlikely to be positive for the U.S., its military, or its civilian population. Third, even if an official believes a prisoner has significant information, physical force should not be a first step. Necessity also contains an idea of escalation. Except under extreme circumstances, coercion should be a last resort after other efforts fail, not a routine practice and certainly not a means of “softening up” a prisoner. To be justifiable, torture should be the exception, not the norm. Yet accounts of U.S. practices suggest that cruel, inhuman, or degrading treatment was the norm and that torture was often a viable option. Finally, if we take up the broader idea of necessity as a source of state power and not just a defense, the conduct of U.S. forces remains unjustified. A great many theorists accept some form of the proposition that executive officials may act outside the law in certain instances, and this power arguably includes the ability to use torture.34 Yet even if that proposition is true, it does little to justify Abu Ghraib. U.S. forces did not face an emergency situation that could not be addressed in any other way. Their conduct is legitimate only if emergency power is a synonym for executive expediency. Although some Bush administration officials have come close to asserting this position, it risks undermining the already limited ability of law to constrain state violence. Where does this leave us? We can conceive of a necessity exception to the law of torture, and the exception likely fails to justify the conduct of U.S. forces in Afghanistan and Iraq. Perhaps, then, necessity is a sensible approach to regulating state violence. In theory, that is, we can admit an exception to the prohibition of torture without undermining the values that

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support that prohibition. Yet the malleability of necessity raises the possibility of expansion and what most would call abuse, especially when used to justify state power instead of merely as a criminal defense. Further, the line from the rhetoric of war and toughness, to policy debates about necessity and other doctrines, to the actions of troops on the ground, is clear to all but the most blinkered partisan of U.S. power. If ideas of necessity as a justification for coercive interrogation helped give the green light to the abuse of prisoners by U.S. forces, then we may want to rethink the value of necessity. Does admitting the possibility that coercion can be justified provide enough benefit to outweigh the harm that it helps create, particularly in the context of an imperial power exercising its military might abroad? But if we decide the harm outweighs the benefit and insist on better enforcement of an absolute ban on physical mistreatment, what should we do in cases where justification doctrine would allow coercion? Do we sacrifice lives by adhering to principle? If an official violates the principle and saves lives, do we brand that person a criminal? Yet if we fail to enforce the absolute principle, aren’t we back to the necessity exception?35 We could have a rigorous public discussion of these issues, perhaps with the goal of developing meaningful guidelines for coercive interrogation and the necessity exception. Or, we could reaffirm the absolute ban and put resources and commitment into preventing and punishing torture. We could even explore the links between torture, other forms of coercion, and state violence generally. But because these options require the will to engage in public debate and to make hard choices, I suspect we will take a different course. We will be like Hans Castorp as he heads for home, his dream fading in his mind despite his vow never to forget it. We will remember Abu Ghraib as a crime, as an episode we label “regrettable,” maybe even “terrible,” but the larger truth it tells about the violence at the heart of our societies will fade. Indeed, I suspect these things will fade from our minds because we want them to. We prefer that our coercive practices be at best an open secret, a topic for spy novels rather than for the nightly news. We prefer a silent deal with our governments, letting them do what they “have” to do, while we refrain from asking too many questions. Perhaps in some vague sense we even approve of or are grateful for the government’s violent protection. Over time, the harm to our body politic from this approach will rival the harm to the bodies of the detainees at Abu Ghraib and other places, known and unknown.

Notes 1. Mann, 480-485. 2. Marsilius of Padua, 36. 3. Cover, 1986, 1601. 4. Ibid, 1607.

John T. Parry 5. I am not claiming law is illegitimate because it relies on violence. To the contrary, we ordinarily presume that the state violence associated with enforcing law is legitimate. I am not seeking here to overcome that presumption, although I hope the rest of my discussion will complicate this idea to some extent. For a good discussion of legitimacy, see Bram Ieven’s contribution to this volume. 6. Koh, 2603. Koh also suggests reasons why nations obey international law even when it is not enforced in traditional ways. For the argument that most individuals obey the law for reasons other than fear of punishment, see Tyler. 7. See Berman, 144 n.21. 8. Holmes, 459-460. 9. Hathaway, 1940. Hathaway reached the same conclusions when she focused specifically on international law regulation of torture. See Oona A. Hathaway, “The Promise and Limits of the International Law of Torture,” in Levinson, 2004, 201-202. 10. For exploration of one aspect of this phenomenon, see Jody Madeira’s contribution to this volume. 11. For the Bivens case and discussion of the doctrine that derives from it, see Fallon, 804-825. The Supreme Court’s detention decisions are Rasul v Bush, 124 S. Ct. 2686 (2004), Hamdi v Rumsfeld, 124 S. Ct. 2633 (2004), and Rumsfeld v Padilla, 124 S. Ct. 2711 (2004). 12. The curfew and internment cases are Hirabayashi v United States, 320 U.S. 81 (1943), and Korematsu v United States, 323 U.S. 214 (1944). The U.S.A. Patriot Act is Pub. L. No. 107-56, 115 Stat. 272 (2001). For discussions of judicial failure to confront police violence in the United States, see Cover, 1983; Parry, 2002. 13. Bolt, 66. 14. For a discussion of these issues in the context of criminal law and particularly the necessity defense, see Parry, 1999, 446-457. Horder offers a convincing criticism of the effort to achieve clear, legislated rule of criminal law. 15. Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations 25-26 (March 6, 2003); Office of Legal Counsel, Memorandum for Alberto R. Gonzales, Counsel to the President re: Standards of Conduct for Interrogation Under 18 U.S.C. §§ 2340-2340A 39-41 (August 1, 2002). 16. This characteristic of interrogation is pervasive. For example, relief and human rights workers confront “torture survivors [who are] resistant and hostile when interviewed.” To get “necessary” information, relief workers “must be strict.” Dawes, 253. Thus, “to protect the vulnerable from injury you must treat them as opponents,

13

14

Pain, Interrogation, and the Body but in treating them as opponents you subject them to injury.” Ibid, 256. 17. For discussion of government proposals and my own assessment of the necessity defense in this context, see Parry and White. 18. Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, pt. 1, arts. 1, 16 (1984). 19. Code of Conduct for Law Enforcement Officials, G.A. Res. 169, U.N. GAOR, 34th Sess., Supp. No. 46, art. 5, cmt. C, U.N. Doc. A/RES/34/169 (1979). The Geneva Conventions also ban torture and other coercion, with no exceptions, but only for certain classes of people, and the International Covenant on Civil and Political Rights bans torture and cruel, inhuman, or degrading treatment. Several regional agreements add additional weight to the prohibition. See Rodley. 20. Seth Kreimer provides a thorough discussion. 21. U.S. Department of State, Initial Report of the United States of America to the U.N. Committee Against Torture (1999). 22. Levinson, 2003, 2017. 23. Parry, 2003, 246-249. 24. See Ireland v United Kingdom, 1976 Y.B. Eur. Conv. On H.R. 512, 792-94 (Eur. Comm’n of H.R.); Ireland v United Kingdom, App. No. 5310/71, 2 Eur. H.R. Rep. 25, 79-80 (1980) (Eur. Ct. of H.R.). The U.N. Committee on Human Rights, the European Commission of Human Rights, and the European Court of Human Rights have given additional content to the terms “torture” and “cruel, inhuman and degrading treatment.” For discussions, see Rodley, 75-106, and Fionnuala Ní Aoláin, “The European Convention on Human Rights and Its Prohibition on Torture,” in Levinson, 2004. 25. For the U.N. position, see Rodley, 95. For the Israeli Commission, see Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (1987), reprinted in Israel Law Review 23 (1989): 175. 26. H.C. 5100/94, Public Committee Against Torture in Israel v The State of Israel, 53(4) P.D. 817 (1999), reprinted in International Legal Materials 38 (1999), 1478, 1480-86. 27. Convention, pt. 1, arts. 2, 16. 28. For a brief discussion of other relevant sources of international law, see Parry, “Escalation and Necessity: Defining Torture at Home and Abroad,” in Levinson, 2004, 162 n.27. 29. U.S. Senate Resolution of Advice and Consent to Ratification of the Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, Reservations, Declarations, and Understandings, part I(1), and part II(1)(a), 136

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Congressional Record S17491 (daily ed. Oct. 27, 1990). For the statutes, see 18 U.S.C. § 2340 (2000), and 28 U.S.C. § 1350 note (2000). 30. Chavez v Martinez, 538 U.S. 760, 774-75 (2003) (opinion of Thomas, J.); ibid, 779 (Souter J., concurring in the judgment). For the voluntariness cases, see Parry and White, 748-751. 31. In late 2004, the U.S. Department of Justice issued a new memo that “supersedes the August 2002 Memorandum in its entirety.” The new memo states that discussion of necessity as a defense or a source of state power is “unnecessary” in light of “the President’s unequivocal directive that United States personnel not engage in torture.” Office of Legal Counsel, Memorandum for James B. Comey, Deputy Attorney General 2 (Dec. 30, 2004). When necessity is a source of state power, it has an obvious kinship to the concept of the state of exception, which Dani Filc and Hadas Ziv explore in their contribution to this volume. 32. For extensive discussion of the necessity defense, see Parry, 1999. 33. One sometimes hears the argument that torture cannot be justified because it does not work. This claim is mistaken for two reasons. First, if the goal is to get useful information, coercion works at least some of the time. See Sanford Levinson, “Contemplating Torture,” in Levinson, 2004, 34. Second, if the goal is domination, torture is likely to work quite frequently. This second goal, of course, is rarely if ever accepted as legitimate by commentators, even if it is a common state practice. 34. For a good discussion, see Oren Gross, “The Prohibition on Torture and the Limits of the Law,” in Levinson, 2004. 35. For classic responses to these questions, see Henry Shue, “Torture,” in Levinson, 2004, and Michael Walzer, “Political Action: The Problem of Dirty Hands,” in ibid.

Bibliography Berman, Paul Schiff. “Telling a Less Suspicious Story: Notes Toward a Nonskeptical Approach to Legal/Cultural Analysis.” In Cultural Analysis, Cultural Studies, and Law: Moving Beyond Legal Realism, ed. Austin Sarat and Jonathan Simon, 105-152. Durham: Duke University Press, 2003. Bolt, Robert. A Man for All Seasons: A Play in Two Acts. New York: Vintage, 1990. Cover, Robert M. “Nomos and Narrative.” Harvard Law Review 97 (1983): 4-68.

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Cover, Robert M. “Violence and the Word.” Yale Law Journal 95 (1986): 1601-1629. Dawes, James. “Atrocity and Interrogation.” Critical Inquiry 30 (2004): 249-266. Fallon, Richard H., Jr., Daniel J. Meltzer, and David L. Shapiro. Hart and Weschler’s The Federal Courts and the Federal System. 5th ed. New York: Foundation Press, 2003. Hathaway, Oona A. “Do Human Rights Treaties Make a Difference?” Yale Law Journal 111 (2002): 1935-2042. Holmes, Oliver Wendell, Jr. “The Path of the Law.” Harvard Law Review 10 (1897): 457-478. Horder, Jeremy. “Criminal Law and Legal Positivism.” Legal Theory 8 (2002): 221-241. Koh, Harold Hongju. “Why Do Nations Obey International Law?” Yale Law Journal 106 (1997): 2599-2659. Kreimer, Seth F. “Too Close to the Rack and the Screw: Constitutional Constraints on Torture in the War on Terror.” University of Pennsylvania Journal of Constitutional Law 6 (2003): 278-325. Levinson, Sanford. “‘Precommitment’ and ‘Post-Commitment’: The Ban on Torture in the Wake of September 11.” Texas Law Review 81 (2003): 2013-2053. Levinson, Sanford, ed. Torture: A Collection. New York: Oxford University Press, 2004. Mann, Thomas. The Magic Mountain, trans. John E. Woods. New York: Alfred A. Knopf, 1995. Marsilius of Padua. The Defender of Peace, trans. Alan Gewirth. New York: Columbia University Press, 1956. Parry, John T. “The Virtue of Necessity: Reshaping Culpability and the Rule of Law.” Houston Law Review 36 (1999): 397-469. Parry, John T. “Judicial Restraints on Illegal State Violence: Israel and the United States.” Vanderbilt Journal of Transnational Law 35 (2002): 73-149. Parry, John T. “What is Torture, Are We Doing It, and What If We Are?” University of Pittsburgh Law Review 64 (2003): 237-262. Parry, John T. Parry and Welsh S. White. “Interrogating Suspected Terrorists: Should Torture Be An Option?” University of Pittsburgh Law Review 63 (2002): 743-766. Rodley, Nigel S. The Treatment of Prisoners Under International Law. 2d ed., Oxford: Oxford University Press, 1999. Tom R. Tyler, Why People Obey the Law. New Haven: Yale University Press, 1990.

Chapter 2 “Too Many Foreigners For My Taste”: Law, Race and Ethnicity in California, 1848-1852 Fernando Purcell In 1855 Hinton Helper published The Land of Gold: Reality Versus Fiction. In his book, when referring to California’s population during the Gold Rush, he stressed the idea of an unharmonious society by positing the following question: “Will a panther from America, a bear from Europe, a tiger from Asia, and a lion from Africa, organize in peace and good feeling around the body of a fresh slain deer? If not, will the Americans, English, French, Germans, Chinese, Indians, Negroes, and half-breeds, greet each other cordially over a gold mine?”1 Helper’s analogy recognizes the cosmopolitan feature of California during the Gold Rush and addresses how different and anxious peoples from all over the world gathered with the same goal in mind: the accumulation of gold. However, California society at the time of the Gold Rush was not unharmonious because of the competition for gold only. Conflict and violence that resulted from racial and ethnic tensions contributed, primarily, to the creation of an unharmonious environment. In this article I will examine dramatic, but representative incidents that illuminate the ways in which legal procedures and the exercise of justice allowed Anglo-Americans to impose a racial agenda in the California gold fields that discriminated against non-whites and especially Mexicans and Chileans.2 That law became a source of discrimination for non-whites is clear in the case of lynching, for example. This form of punishment was predominantly directed against non-white foreigners and was usually legitimized by extralegal populace-appointed judges and juries in the gold fields. These extralegal tribunals appeared because of many authorities’ lack of legitimacy and power or simply because in many cases authorities did not exist. The State of California, established in 1850, also found legal ways to discriminate against non-whites, in which laws provided an implicit legitimacy to the discriminatory actions committed before and after 1850 by many Anglo-American individuals against non-white people. Among the concrete actions taken by the State were the Foreign Miner Taxes of 1850 and 1852, and the denial of the right to testify in court to non-whites. During the California Gold Rush, Anglo-Americans felt upset by the incredible number of foreigners who were “stealing” their gold and threatening their predominant position in the newly conquered territory of California, acquired after the Mexican American War of 1846-1847. In a letter written to his wife, John Baker, a physician in Jackson, California, referred to this place as a good and decent camp with “some very good buildings, but decidedly, too many foreigners for my taste.”3 These “too many foreigners” that bothered Baker were mostly non-whites. His words, in fact, were charged with the idea of Manifest Destiny that in mid-nineteenth

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century United States was seen “less as a victory for the principles of free democratic republicanism than as evidence of the innate superiority of the American Anglo-Saxon branch of the Caucasian race.”4 As Reginald Horsman argues, the westward expansion in the mid-nineteenth century, of which the California Gold Rush was an important part, was permeated also by a racial ideology that “helped determine the nature of America’s specific relationships with other peoples encountered in the surge to world power.”5 The dissatisfaction of Baker and many Anglo-Americans with the presence of non-whites in California took violent forms in numerous instances. According to David A. Johnson, between 1849 and 1902 there were 380 cases of lynch law justice in California and approximately half of them occurred during the short period of the Gold Rush between 1849 and 1853.6 In those crucial years when the California State was in a formation process, Johnson states “non-whites, primarily Hispanics, composed a dramatically disproportionate percentage of those who experienced the wrath of the ‘people.’”7 In order to illustrate my argument, I will concentrate on two of these lynching cases that, although dramatic, represent the dimension and types of discriminatory practices that Mexicans and Chileans in particular, suffered in California. On the afternoon of July 5, 1851, Josefa, a Mexican woman from Sonora, was taken to the gallows in the small mining town of Downieville. At the place of the execution she was received, as witness David Barstow pointed out, by the “hungriest, craziest, wildest mob standing around that I have ever seen anywhere.”8 Josefa the only known women hanged during the California Gold Rush, was executed for stabbing Anglo-American miner Frederick Cannon, early on the morning of the same July 5. In the short and expedited trial, Josefa’s argument was discredited by most Anglo-Americans. Josefa declared that she had stabbed Cannon to defend herself after he had forced her house’s door with the intention of taking sexual advantage of her. In the trial Josefa testified: “I had been told that some of the boys wanted to get into my room and sleep with me; a Mexican boy told me so and it frightened me so that I used to fastened the door and take a knife with me to bed.”9 During the trial, however, the idea predominated that Cannon had fallen against the door of Josefa’s house because he was drunk and that the door gave way because it was frail. Josefa’s testimony, which during the trial was supported only by her Mexican paramour named José – who was also accused of participating in the murder – was supported ten days later by the Sacramento Times & Transcript. This newspaper included a report based on witness John S. Fowler’s observations that coincided with Josefa’s statement. According to this newspaper, “she had stabbed a man who persisted in making a disturbance in her house, and had greatly outraged her rights.”10 It is impossible today to get the truth of what really happened, but José and Josefa’s testimonies seem plausible and more credible than the story of the drunken man accidentally falling against the door of the house where one of

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Downieville’s few women – and coincidentally a Mexican – happened to live.11 Josefa’s version of the event seems credible, especially taking into account the common discriminatory practices against Mexicans in California at that time and the images that existed in the United States during the 1840s of lazy Mexican men and sexually-available Mexican women. These images were established by the accounts of Anglo-American travelers and reinforced during the Mexican American War where racial stereotypes of the Mexicans were combined with sexual overtones.12 For instance, during Josefa’s execution the excitement was impressive and, as a result, “ropes had to be brought into requisition to keep the mob back. They would once in a while make a rush for her,” according to David Barstow’s testimony.13 The sentence for Josefa was ready as soon as she committed the crime. Early that morning the populace embraced the general cry of “hang them [referring to Josefa and José]. Give them a fair trial and hang them!”14 In other words, the mood of the populace was for using a legal trial to legitimize a decision that had been made as soon as they knew a Mexican woman had killed Cannon. The excitement in town was impressive and at 1 o’clock on the same day of the stabbing, the people in Downieville had organized a court with John Rose as Judge and another twelve people as jurors. The informal, sporadic jury created that day to judge Josefa found her guilty and condemned her to be executed. José, her paramour, was ordered to leave the town. The jury’s decision to hang Josefa was not only based on law, but also on the belief of Mexican racial and ethnic inferiority. This is why the possibility of interpreting Josefa’s action as self-defense was not even considered by the jury. Testimonies about this case, for example, expressed the idea that there was a propensity among Mexicans to commit these kinds of crimes. Josefa, according to witness John R. McFarlan, “presented more the appearance of one who would confer kindness than one who thirsted for blood; but the propensity of her race was truthfully developed not only by the entire testimony, but by her own statement and that of her paramour.”15 This speaks for itself in terms of the behavioral assumptions commonly made at that time about the racial and ethnic background of people, Mexicans in this case. In fact, other contemporary accounts provide similar descriptions of Mexican women. Louise Clappe described an incident in one of her letters where Domingo, a “tall majestic-looking Spaniard” had stabbed Tom Somers, an Irish-born United States citizen at Indian Bar, California. After the stabbing, Domingo walked through town with a “Mejicana hanging upon his arm, and brandishing threateningly the long bloody knife with which he had inflicted the wound upon his victim.”16 Anglo-Americans reacted quickly, persecuted all the Mexicans in town and elected a Vigilance Committee to try several Mexicans. The first one to be tried was the same Mexican woman who was with Domingo after the incident because she has been the indirect cause of the problems between Somers and Domingo. Some Anglo-

20

“Too Many Foreigners For My Taste”

Americans even suggested hanging her, but she was finally ordered to leave the town. According to Louise Clappe, there was no doubt that she was a “regular little demon.”17 An important aspect influencing Josefa’s execution, then, was her origin and not only the fact that she killed an Anglo-American miner. The extralegal authorities nominated by the town to judge Josefa clearly brought their racial prejudices to the trial and accepted the call of the anxious populace who asked and pressured for a “fair” hanging. This case demonstrates how Manifest Destiny and its racial implications were at work in early U.S. California and how this made possible the existence of precipitated legal judgments, especially in criminal cases involving nonwhites. The importance of law and justice as a tool to impose racial supremacy becomes even clearer when examining the so-called War of the Calaveras, known also as the Chilean War, that occurred in the California foothills, 150 miles east of San Francisco, in December 1849 and early January 1850. This incident originated after a group of Chileans refused to obey the order from Anglo-American miners to leave the area. As witness John Hovey wrote in his diary, these Anglo-Americans felt a duty to form a code of “just laws” to maintain the privilege of exploiting what they considered their own land. As a result, a group of miners met on December 9, 1849 to “make laws to have our rights as American Citizens,” and as Abraham Nash pointed out, to expel the “D’d copper hides every one of them.”18 Following common democratic practices among Anglo-Americans, a group of miners elected their own authorities for the area where they were mining, chose L. A. Collier as district judge, and elaborated a series of laws. The first one established that no foreigners were to be permitted to work in the mines of Calaveras after the following day.19 Chileans, however, continued working in the mines, and AngloAmerican miners, under the leadership of their newly elected Judge, captured and fined them because of their defiance. After their release, a group of Chilean miners departed to the nearby town of Stockton where they complained to the local authorities saying that they had not been treated fairly by Judge Collier and worse than that, he lacked the legal authority to perform as judge. Implicitly, the Chilean patrones were also complaining about the legitimacy of Collier’s authority and his appointment as Judge by a group of common Anglo-American miners.20 The Chilean socio-political background, where common people never had the power to appoint authorities or pass legislation through spontaneous public meetings, made them distrust Collier’s authority and the validity of his resolutions. Chilean patrones were not complaining for having been left out of the appointment process of Judge Collier. Their problem was that they considered that common Anglo miners from the lower and middle-classes had no legal power to appoint authorities. In other words, they were not accustomed to these organizational democratic practices common in the U. S. nineteenth-century West, which though

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racially discriminatory, were usually respected by Western white communities.21 As Florencia Mallon argues for Latin America, “by the second half of the nineteenth century, however, nation and citizen were concepts applied to a select group, usually property-owning, of European descent, literate, and male.”22 As a result, upper-class Chileans who were leading these mining companies in California did not consider most Anglo-American miners part of a “select group” with the authority to appoint judges. They probably saw the action of these Anglo-American miners as illegitimate because their democratic notions restricted the power of electing authorities to a few elite people, and these notions clashed with those of Anglo-Americans, who accepted the power of “the people” to elect authorities. Nevertheless, the Chileans were able to obtain a warrant from the Stockton authorities, who may have had personal reasons to defy the authority of the recently-nominated Judge Collier or simply considered his nomination a challenge to their power.23 The warrant stated that the Chileans were authorized to arrest and bring to Stockton “either freely or by force all of the individuals residing in Calaveras who have defied the legal authority of this sub-prefecture and who have recognized Mr. Collier as a judge.”24 The arrest order was put in the hands of Chilean miners, providing them with an unusual judicial prerogative. Justice in the mines was used throughout the Gold Rush not only as a way to impose “order” but also as a consistent and conscious form of establishing Anglo-Saxon racial superiority in the recently conquered and foreign-crowded territory of California. In this case, this racial agenda, carried out through the exercise of justice, was being harmed and turned the opposite way. With the warrant in their hands, the Chileans returned to Calaveras on December 26th. There they asked Calaveras Judge Scollen – whom they recognized as the legitimate authority for Calaveras – to authorize them to execute the arrest order. Scollen, who was the area judge recognized by Stockton authorities, dismissed the order because he feared the reaction of those Anglo-Americans supporting Judge Collier. At that point, the Chileans decided to take justice in their hands. Eighty armed Chileans went to the Anglo-American camp in the area. Once there, they went through the different cabins, killed several people, and injured others. After the attack, the Chileans tied some of them to trees and took sixteen prisoners to Judge Scollen’s cabin.25 Scollen refused to see the Chileans because he did not want to become involved in the incident. Therefore, the Chileans decided to march toward Stockton with the prisoners. A couple of days later, while the Chileans were on their way to Stockton, the sixteen prisoners were rescued by a group of angry Anglo-Americans, and the Chileans passed from being captors to captives.26 The Chileans were brought back to Calaveras on December 30, and the following day Anglo-American miners formed a jury of twelve men and found them all guilty of murder in the first degree. Meanwhile, as John

22

“Too Many Foreigners For My Taste”

Hovey wrote in his diary, “the news had spread like wildfire through the different mines,” and hundreds of miners made their way to Calaveras in the following days to witness the execution of the Chileans.27 At the end, several Chileans were punished.28 One was sentenced to have his ears cut off and three of the leaders to be shot. The execution of the sentences took place on January 3, 1850. As Argentine Ramón Gil Navarro later wrote, the cutting of Chilean Ignacio Yañez’s ears was followed by a cry of pain such as one might hear in the last agony of a martyr. The ear with a part of the cheek was in the hand of the executioner who, after a moment, threw it aside and went after the other ear with the coldest insensitivity. A sea of blood inundated the face and clothing of the poor fellow, giving him a look more horrible than you can imagine . . . Finally Terán, Damian Urzúa, and Francisco Cárdenas were tied to oak trees . . . then shot from a distance of fifty feet, not all at once but one after another.29 The same day of the execution, and not knowing the tragic end of some of the Chilean miners yet, the astonished editor of Pacific News in San Francisco could not believe what his correspondent had written when reporting about the origins of the incident: If we understand our correspondent right, the warrant was issued by the American authorities, and placed in the hands of Chilians, [sic] for the arrest of American citizens. If this was the case, such a course was undoubtedly wholly injudicious in itself, and likely to produce the calamity which has arisen. We trust, however, that there is some mistake in this, and that the matter will be satisfactorily explained hereafter.30 In reality, the correspondent had provided an accurate report of the incident and the incredulous editor continued by blaming Stockton authorities and stating that there was culpable carelessness somewhere in this matter. Why send a party of foreigners to arrest Americans-especially foreigners who could not speak the English language, and who even did not take with them an interpreter? . . . Shameful, indeed, is it, that an American was not sent to make the arrest, if there was any need of it.31

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James Ayers, who ended up as a prisoner of the Chilean extralegal authorities, also stressed this problem by lamenting the great mistake by the Stockton authorities who, according to him, “did know that they had no authority of law to invest a foreign mob with any such semblance of legal power.” For Ayers, there was a “general consensus of opinion amongst the miners upon this subject, and it would have been a ‘most lame and impotent conclusion’ to permit an alien to exercise a privilege which was denied to an American citizen.”32 There are many aspects that help explain the Anglo-American animosities against the Chileans. Among them, one can mention AngloAmericans’ reluctance to admit the presence of Chilean peons in California, who were seen as hired serfs or slaves.33 Scarcity of gold may have been another factor especially since the incident took place at the beginning of the Winter season when the extraction of gold became more difficult. However, there were two other elements that account for what happened. One was the belief among Anglo-Americans that they, as whites, had the exclusive right to extract gold from their own territory. The other was the fact that Chileans had the audacity to try to make justice by themselves, something that was simply unacceptable for Anglo-American miners. They, as I have argued before, attached a racial connotation to their laws and legal procedures in order to impose their racial superiority in the newly conquered territory of California. In a time when Anglo-Americans in California had not yet established their racial hegemony extensively through labor control, lynching and law became powerful ways to impose Anglo-Saxon racial hegemony. What was contradictory about California during the Gold Rush were the numerous cases of public executions at a time when, as Michel Foucault points out, there was a rapid worldwide process leading towards the disappearance of punishment as spectacle.34 Many places in the United States banned public executions, especially in the first half of the nineteenth century. By 1845, all of the New England and Mid-Atlantic States, where the great majority of Anglo-American forty-niners came from, had eliminated public executions. This practice continued in the slave-based South Eastern States and in California, where the “danger” of the presence of “undesirable” inferior people was present. This shows how powerful racism was in the United States, but more important, how connected public executions were with the imposition of racial supremacy. Hence, it is not surprising that public lynching in California remained legally accepted in the State until 1858, when Anglo-Americans had advanced considerably towards the consolidation of their racial supremacy in California. In that year, the California Legislature moved executions inside county jails and required at least 12 respectable citizens as witnesses.35 Lynching worked well in terms of scaring many non-white foreigners and attracting large crowds of Anglo-Americans during the Gold Rush. As Philip J. Ethington points out, “by extinguishing a human life in public – leaving the body for view and sometimes abusing it – crowds and

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“Too Many Foreigners For My Taste”

their leaders intend[ed] to transform the individual [victim] into a collective symbol.”36 The non-white victims examined in this article became collective symbols of racial inferiority. At the same time, the motives for these lynchings were eminently public and had a function of communication linked to a strong racial ideology. Hence, the Anglo-American witnesses for the trials that led to these lynching cases had the chance to testify against nonwhites as well as to make the establishment of racial and ethnic hegemony more tangible. When discriminating against non-whites, Anglo-Americans developed a sense of accomplishment regarding their positioning as rulers of California. Something similar happened later in the South with the lynching against blacks at the beginning of the twentieth century during the age of Jim Crow. Lynchers in the South, like those in California during the Gold Rush, were interested in maintaining white racial supremacy, using lynching as a tool for their purpose. As Leon Litwack points out, the lynching of blacks gathered large crowds of white witnesses in the South where they “came together in an impressive show of racial and community solidarity,” much like half a century earlier in California.37 The role of the State of California, in terms of legislating and supporting measures against non-white people, is a clear example of the broader framework in which law and justice, in relation to race and ethnicity, operated in California during the Gold Rush. For instance, the State did little during the Gold Rush to stop lynching and public executions. Nevertheless, the State of California did not have a passive role only. The first Foreign Miner Tax was passed by the State Legislature on April 13, 1850, and it imposed a monthly fee of twenty dollars on every foreigner working in gold extraction. Thomas J. Green, the author of the legislation, argued “this bill requires the foreigner, upon the plainest principles of justice, to pay a small bonus for the privilege of taking from our country the vast treasure to which they have no right.”38 What Green considered a “small bonus” was a large amount of money, which essentially sought the expulsion, rather than the exploitation, of foreign miners. There are different interpretations of this tax. Richard Morefield points out that the aim was to eliminate competition because of the mining skills of Mexicans and Chileans.39 Leonard Pitt argues that behind the law there was an attempt to exploit the foreign miners because Thomas Jefferson Green, the Texan author of the law, expected Anglo-American miners to buy licenses for the foreign operators they employed. Thus, many foreign miners would have been obliged to work for Anglo-American miners in order to pay back the permits acquired by their “masters,” developing a relationship of bondage.40 This law, however, “was designed more to exclude than to exploit such foreigners as the Mexicans.”41 Early in 1850 for example, people like T. Butler King, collector of the Port of San Francisco, pointed out, “I would not allow them [foreign miners] to purchase permits, or work vein-mines . . . the object [of a potential tax] is not only a suitable revenue, but to preserve for the use of our own fellow-citizens the wealth of that region.”42 This way of

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thinking, which was shared by most of the Anglo-American miners, demonstrates that behind this law was the attempt to expel rather than exploit foreign miners. Tax collectors, who had the right to keep three of the twenty dollars for themselves for their services, rarely asked white foreigners for money and singled out mostly Spanish-speakers. The same happened with the 1852 tax law that was directed against Chinese miners who started arriving in California in considerable numbers only in 1852. The 1850 law was published in English and Spanish only, which shows who the target of this law was. Since the 1850 tax was directed toward Spanish-speakers, mainly Mexicans, William Smith recommended to Governor Peter Burnett in 1850 the nomination of William Martin as tax-collector in Calaveras because “with Mexicans he is remarkably popular and would have less difficulty in collecting the tax from them.”43 As an English immigrant who was in Chili Gulch in 1850 pointed out, the tax collectors arrived at their place “armed to the teeth” and remained at their camp for the night, “But they never asked if we were naturalized Americans or not and did not solicit fragment [sic] from us. They collected the tax, 30 [sic] dollars a month principally from the Mexicans, and in default of payment would seize their mules, and on the slightest demur would shoot the owner.”44 This anecdote illustrates how the tax was charged with a racial and ethnic connotation when dealing with Mexicans and Chileans and explains why other foreigners, including Englishmen, were not charged with taxes for mining. An infuriated group of Mexican and Chilean miners protested against the law and wrote to California Governor Peter Burnett complaining that they were “being prevented from working the mines [while] other foreigners are allowed that privilege.”45 This statement referred implicitly to Irish, English and German miners who were permitted to work in the mines even though they were foreigners too. Some non-U.S. citizens, including the Irish portion of the so-called Sydney Ducks, or immigrants from Australia, used the tax as an opportunity to be considered “white,” or in other words to enjoy the privileges denied to non-whites or “partially white people.”46 The editor of the Stockton Times complained in November 1850 about the high amount of money that the Foreign Miners’ Tax imposed on foreigners. For him, a lower amount of taxes would have protected foreigners from “the impositions and insults of that portion of the American, pseudo-American, and Sidney-American people who would banish or exterminate every ‘foreigner’ in the country.”47 This editorial implies that people like the so-called Sydney Ducks who came from Australia and “pseudo-Americans” – presumably Englishmen, Irishmen and Germans – sided with the Anglo-Americans in opposition to a limited number of foreigners against whom the tax was imposed. Hence, certain foreigners sided with Anglo-Americans as a way to define themselves in opposition to the “undesirable” foreigners. This strategy sought to ease their incorporation into California society. At the end, and as Sucheng Chan points out, “the

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“Too Many Foreigners For My Taste”

English, Irish, and German lined up on the side of Americans against the other foreigners, in the process solidifying their own standing as honorary Americans.”48 Another example that reveals the important role of the State of California in establishing racial supremacy is the California law that prohibited certain non-white people from testifying in court. This sought to avoid non-white testimonies against white people in court as well as to impede non-whites from testifying in favor of other non-white people. In the two cases examined here, non-whites who were not directly involved in the incidents were not allowed to testify. Blacks and Indians in California were denied the right to testify in court in 1850. The same happened to the Chinese in 1854. Only in 1863 were blacks allowed to testify in California courts, even though California was born as a free State in 1850. Indians and Chinese had to wait until 1872.49 The denial of the prerogative to testify is probably the ultimate expression of how law and justice, with the sanction of both the people and the State, became sources of discrimination and a fundamental tool for imposing Anglo-Saxon racial supremacy in California. The California case examined in this paper reminds us that, historically, racial and ethnic discrimination have been attached to many processes of state formation in the last centuries. Hence, the California process of state formation is not an obscure and hidden event lost in time but an interesting case to compare how other states in the past and present have dealt, and still deal, with ethnic and racial minorities at the moment of their formation. At the same time, this article underscores the issue of the relationship between the State of California and the public and their respective responsibilities in the discrimination against non-whites during the California Gold Rush. During this event, there was a complex equation that differed from the practice of state intervention and passive public consent. Instead, there was a more intricate relationship between the State and AngloAmericans living in California. As demonstrated, both responded to the same project of racial hegemony entrenched in the ideology of Manifest Destiny. The State of California, established in 1850, legitimized the previous discriminatory practices against non-whites by Anglo-Americans by promoting new legislation that also affected people like Mexicans and Chileans. On the other hand, the discriminatory practices of Anglo-American miners in the gold fields provided an implicit base of support for any ethnic or racial discriminatory measures on the part of the State. The result was a powerful process in which Anglo-Americans and the State of California worked together towards the creation of a hegemonic racial supremacy in California during the Gold Rush.

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Notes 1. Helper, 38-39. 2. In this article I concentrate on Mexicans and Chileans only. However, other non-white communities suffered similar discriminatory practices at the hands of Anglo-Americans. 3. Letter of John Baker to his wife, Jackson, California, December 10, 1854. John Baker Letters in Bancroft Library. 4. Horsman, 1. 5. Ibid, 6. 6. Johnson, 560. 7. Ibid, 573. 8. Barstow, 23. 9. The Steamer Pacific Star, San Francisco, July 15, 1851. 10. Article republished in Alta California, San Francisco, July 14, 1851. 11. In the California census of 1850, women comprised only eight percent of the State population. Levy, 176-177. 12. Horsman, 233-234. 13. Barstow, 24. 14. The Steamer Pacific Star, San Francisco, July 15, 1851. 15. John McFarlan, Journal of a Voyage to California via Cape Horn in 1850 [aboard the ship “California packet” trip to Oregon, and life in the mines at Downieville California]. Unpublished journal in Huntington Library, 159. 16. Clappe, 134. 17. Ibid, 137. 18. John Hovey, “Historical Account of the Troubles between the Chilians and American Miners in the Calaveras Mining District, commencing December 6, 1849 and ending January 4, 1850,” in Journal of a Voyage From Newburyport, Mass. to San Francisco, California. Unpublished diary in Huntington Library, 85 and 88. 19. Hovey, 85. 20. The Chileans in the area were performing their mining work organized in companies under the leadership of patrones, or upper-class Chileans who had hired lower-class peones in Chile. 21. Ridge, 25-27. 22. Mallon, 13. 23. Beilharz and López, 120-124. 24. Ibid, 125. 25. Alta California, San Francisco, January 2, 1850. 26. Pacific News, San Francisco, January 3, 1850; Ayers, 52. 27. Hovey, 81-82. 28. Ibid, 80. 29. Beilharz & López, 145-149. 30. Pacific News, San Francisco, January 3, 1850.

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28

“Too Many Foreigners For My Taste” 31. Ibid. 32. Ayers, 61. 33. Ibid, 46; Alta California, San Francisco, July 26, 1849. 34. Foucault, 8. 35. Ethington, 100. 36. Ibid, 98. 37. Litwack, 294. 38. California. Senate, Journal of the Senate of the State of California, vol. 1850, 494. 39. Morefield, 40. 40. Pitt, 60-61. 41. Peterson, 267. 42. Taylor, 372. 43. Letter of William Smith to the Governor of California, 1850, no date. Governor Peter Burnett papers, letters received, in California Historical Society. 44. Unknown English author, Early Days in California, Manuscript written in October 1852, in Bancroft Library, 5. 45. Letter of Julian Abechuco, Jacinto Fernandez, Francisco Garcías, José Andrade, Raimundo Gonzalez, José Duarte, Pablo Arana, Joaquín C. y Verrano, Richard Paynter and José María Cota to the Governor of California, Jesus Maria, Calaveras, May 1, 1850. Governor Peter Burnett papers, letters received, in California Historical Society. 46. For a good summary of the state of the field regarding whiteness studies see Kolchin, 154-173. 47. Stockton Times, Stockton, November 23, 1850. 48. Chan, 60. 49. Moore, 118-120.

Bibliography Ayers, James J. Gold and Sunshine: Reminiscences of Early California. Boston: The Gorham Press, 1922. Barstow, David Pierce. Recollections of 1849-51 in California. Inverness: The Press of Inverness, 1979. Beilharz, Edwin A. and Carlos López, eds. We Were 49ers! Chilean Accounts of the California Gold Rush. Pasadena: Ward Ritchie Press, 1976. Chan, Sucheng. “A People of Exceptional Character. Ethnic Diversity, Nativism, and Racism in the California Gold Rush.” In Rooted in Barbarous Soil: People, Culture and Community in Gold Rush California, eds. K. Starr and R. Orsi. Berkeley: University of California Press, 1976.

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Clappe, Louise. The Shirley Letters: From the California Mines, 1851-1852. Berkeley: Heyday Books, 1998. Ethington, Philip L. The Public City: The Political Construction of Urban Life in San Francisco, 1850-1900. Berkeley, Los Angeles, London: University of California Press, 1994. Foucault, Michel. Discipline and Punish. The Birth of the Prison, trans. Alan Sheridan. New York: Pantheon Books, 1977. Helper, Hinton R. The Land of Gold: Reality Versus Fiction. Baltimore: Henry Taylor, 1855. Horsman, Reginald. Race and Manifest Destiny: The Origins of American Racial Anglo-Saxonism. Cambridge: Harvard University Press, 1981. Johnson, David A. “Vigilance and the Law: The Moral Authority of Popular Justice in the Far West.” American Quarterly 33 (1981): 558-586. Kolchin, Peter. “Whiteness Studies: The New History of Race in America.” Journal of American History 89 (2002): 154-173. Levy, Jo Ann. They Saw the Elephant: Women in the California Gold Rush. Norman and London: Oklahoma University Press, 1990. Litwack, Leon F. Trouble in Mind: Black Southerners in the Age of Jim Crow. New York:Vintage Books, 1999. Mallon, Florencia E. “Decoding the Parchments of the Latin American Nation-State: Peru, Mexico and Chile in Comparative Perspective.” In Studies in the Formation of the Nation State in Latin America, ed. James Dunkerley, 13-53. London: Institute of Latin American Studies, University of London, 2002. Moore, Shirley Ann W. “‘We Feel the Want of Protection’: The Politics of Law and Race in California, 1848-1878.” California History 81 (1998): 96-125. Morefield, Richard. “Mexicans in the California Mines, 1848-1853.” California Historical Society Quarterly 35 (1956): 37-46. Peterson, Richard. “The Foreign Miners’ Tax of 1850 And Mexicans in California: Exploitation or Expulsion?” The Pacific Historian 20 (1976): 265-272. Pitt, Leonard. The Decline of the Californios: A Social History of the Spanish-Speaking Californians, 1846-1890. Berkeley: University of California Press, 1998. Ridge, Martin. “Disorder, Crime, and Punishment in the California Gold Rush.” Montana. The Magazine of Western History 49 (1998): 12-27. Taylor, Bayard. Eldorado or Adventures in the Path of Empire. New York: Alfred A. Knopf, 1949.

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Chapter 3 Protection, Harm and Social Evil: The Age of Consent, c. 1885-c. 1940 Shani D’Cruze 1.

Sex, Violence, Power and Age The law has used the categories of rape and indecent assault to criminalise certain kinds of violence in sexual encounter. It has generally been most convinced where that violence was demonstrably physical and in its deliberations over consent has often looked for physical resistance (in other words a violent response) from a prosecutrix. The law has also criminalised certain sexual practices and object choices that legislators and courts have deemed reprehensible in themselves. One of these areas has been sexual activity involving people below certain stipulated ages. Historically, the age of puberty has had no strict correlation with the statutory age of consent.1 This paper asks how far sex-with-minors has been of itself seen to involve violence or whether such practices have been criminalised because (like – and not like – bestiality, buggery and, after 1885, gross indecency between males) it involved an inappropriate object choice. I argue that the law found itself with certain definitional and inpractice problems that were frequently addressed through (contested) rhetorics of “protection.” Discourses of protection actively constitute vulnerabilities in their objects.2 The threatened harm was itself a sign with unstable referents. The recurrent moral inflection of discourses of protection amplifies harm as “social evil,” a category far less measurable in any utilitarian sense and thus less susceptible to diminution through control. Such rhetorical moves acquired shifting inflection through the discursive and institutional trends into the twentieth century which have been labelled as penal-welfarism. Constituting the numerous persons who came to the attention of the criminal justice system in such cases as objects in need of protection, potentially invoked misrecognitions and produced subaltern subject positions that had perforce to be occupied to mobilise the protection of the law. Feminist (and other) scholarship has demonstrated how limited such protection might be and how judicial, criminal and even welfare intervention has perpetrated its own violences on those already vulnerable (the Cleveland affair comes to mind).3 Therefore, who is a “child” in need of protection, exactly what might be the relationships between pleasure, desire, and “adultness” or its absence, and what exactly has “consent” amounted to before the law in the area of sex legislation?4 The answers are complex and contingent. Of course there is not, and never has been, a unitary “age of consent.” English law has banned certain activities, sexual and other, and categorised people by age for particular treatment in diverse areas. Such age stipulations have changed over

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time, are not necessarily consistent with each other, and have varied by gender. Two not necessarily congruent and often contested impulses have been at work; firstly that sexual activity between adults and children is normatively presumed to constitute an offence; secondly, that any sexual activity between children (however defined) should be against the law on wider grounds of social harm (or social evil). However, dominant constructions of sexual desire and of the child have together compromised the application of these presumptions in heavily gendered ways; by which I mean that gender has been drawn upon both socially and symbolically to obscure relations of power and subordination (and their immanent violences) in sexual encounters. Such processes have made violence harder to define both historically and by the law in practice. It is not easy, as researcher, particularly given the mediated nature of the criminal justice record, to evolve an analytically effective concept of violence. To the extent that violence is performative and expressive, it is incapable of being understood outside the specifics of its historically located social interaction. Hence, do (feminist) theoretical insights about the silences and inarticulacies produced by power permit us to identify violence where the sources (and the actors) do not? Do wider formulations of “social violence” help us with historical interpretation? How might we untangle coercion, aggression, censure and violence, and how do such categories relate to rhetorics of “evil”?5 This paper addresses just a segment of these big issues. It interrogates the intersections between violence, harm and evil in the law concerning heterosexual sex involving adolescent girls from the midnineteenth century to the Second World War. As such it is a re-crossing of ground already traversed by women’s historians and other scholars with different – or differently formulated – questions in mind. 2.

Victorian Legislation When Victoria came to the throne, the age of consent for girls was effectively 10.6 The 1861 Offences against the Person Act was a major consolidating statute, part of the procession of legislation that Weiner sees as a sea change in the disciplining of men’s violence in Victorian England.7 Section 48 reiterated the crime of rape as a felony. Overall this act was concerned with physical violence, and this association as well as the expectation of demonstrable “resistance” underlined a legal understanding of sexual violence as physical violence. The context of the clauses prohibiting sex-with-minors was therefore one preoccupied with violence in its most legible form. In enacting that it was “no offence to have sexual intercourse with a girl under 12 who ‘freely consented’ however ignorant,” the 1861 Act maintained the age of consent at 10, two years before the age of valid marriage. Consent (from a 10 year old) thus negatived violence. Although “carnal knowledge” with girls under 10 was a felony, evidence of “valid consent” by such a girl effectively meant that the charge was reduced to the

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misdemeanour of “attempted carnal knowledge.”8 If consent, which presumably enabled carnal knowledge to be the more fully gained, resulted in a charge of the attempt rather than the accomplishment, the legal position seems to have been that force could procure consent from girls under 10 as much as from adult women. So did such force (once negatived by consent) still amount to violence, to harm or even to evil? The Contagious Diseases Acts of the 1860s focused on the adult woman prostitute and sought to regulate this “social evil” through medicalised disciplinary technologies.9 Campaigners drew attention to the violence of the speculum. These laws implicitly acknowledged prostitution as a necessary outlet for the sexual imperatives of (initially, though of course not exclusively) the military – a potentially disorderly male population with a significant working-class component. The furore about child prostitution of the 1880s, however, had as its legislative outcome in the 1885 Criminal Law Amendment Act (CLAA) a raising of the age of consent to 16. Thus the response to concerns about sexual abuse of female adolescents was to legally re-position the boundaries of feminine sexual innocence. “Protection” implied that adolescent girls were not fully in control of their nascent sexuality. Although this Act also, of course, criminalised gross indecency between men through the Labouchère Amendment, this was an afterthought and the predominate representation of the wrongs of child prostitution was of the sexually innocent female child, sold by corrupt working-class parents and violated by the adult (middle or upper class) male. Such representations bundled together anxieties about class, sexuality and the symbolic role of normative constructions of family as guarantors of a wider social order. Although the age of 12 had been raised to 13 in 1875,10 the 1885 Criminal Law Amendment Act established the legislative framework of the forthcoming century. The CLAA established the felony of sexual intercourse with a girl under 13 irrespective of consent, and the misdemeanour of intercourse with a girl between 13 and 16 irrespective of consent but outside lawful marriage. The anomaly that a girl could marry at 12 but not consent to sexual intercourse outside marriage until 16 remained in place until the Marriage Act of 1929.11 Girls were therefore capable of consenting to marital sexual intercourse at 12, since agreement to marriage established a woman’s ongoing consent to her husband’s sexual access. Hence, it was less any direct, physical or psychological harm to an adolescent girl caused by sexual intercourse per se that was at issue. The “evil” was moral and was to do with loss of sexual chastity. 3.

Questions of Desire Men tried for child sexual abuse have not infrequently pleaded affectionate or playful behaviour, locating abusive sexual practices in the domain of the intimate.12 For Giddens, intimacy is a potentially progressive notion, overcoming the gendered power imbalances implicit in concepts of romantic love. Nevertheless, historically, intimacy and violence have not

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been mutually exclusive and can be mutually constitutive categories, not only but most saliently here in the domestic and the everyday. For Ann Laura Stoler the intimate is a cultural space, where (raced and gendered) identity boundaries are made, risked and (with difficulty) defended. The proximities of intimacy are about the body-as-surfaces but also about embodied subjectivities. If as Jeff Hearn argues, heterosexuality is a “social relation and a social form of sexuality that is usually founded on difference and the eroticisation of difference,” proximity remains in tension with the lived identification of distance.13 GR, a British army officer in India between the wars, wrote: I naturally prefer to satisfy myself with a woman, a friend and a lady of my own class, but in the absence of the best I naturally take the next best available, down the scale from a lady for whom I do not care, to prostitutes of all classes and colours, men, boys and animals, melons and masturbation.14 This imagines sexual desire as an expression of masculine power and autonomy, and being fairly adventitious in choice of sexual object. The resultant sexual practices subordinate the othered object of desire. In the eroticised spaces of Empire male desire may have more easily ranged untrammelled (though eroticised spaces are potentially anywhere and always elsewhere). Nevertheless, from the perspective of the “reasonable,” bourgeois, respectable, and heterosexual man (returning home) on the Clapham omnibus, English law had a role to play in containing sexual desire and focusing it on a normative object – the respectable wife – thus reproducing comfortingly hegemonic gender relations. Dominant family ideals called for both the heterosexual married couple and the asexual child. Legitimate, manly desire was valorised for its ability to “conquer” its object against obstacles and chaste feminine refusals. Hegemonic masculinities contained the implicit contradiction that, even while normative male sexual desire was considered wide-ranging and insistent, the “reasonable man” combined agency with self-control and the ability to manage desire. Some masculinities, of course didn’t make the grade – and not only homosexual or otherwise deviant ones. Official as well as quack nineteenth-century medical practice, for example, did a brisk trade in diagnosing and treating “spermatorrhoea,” a syndrome linking masturbation, nocturnal emission and impotence.15 As Lesley Hall has demonstrated, the plethora of men’s anxious letters to Marie Stopes show that they still weren’t getting it quite right in the 1920s when the popularised versions of sexology had if anything raised the stakes of masculine heterosexual performance. Masculinities “othered” through debility, class or racial position were precarious. Feminine sexualities (and by elision the feminised charms of the homoerotic other) were by their nature disorderly and an ever present

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temptation. Louise Jackson’s work on nineteenth-century child sexual abuse draws attention to an eroticisation of “littleness”16 – the sexually innocent girl was both a miniaturised woman and always already on the point of loss of innocence. Furthermore, the eroticisation of the forbidden necessarily contributed to the contradictory status of the female adolescent as a problematic object of both sexual innocence and of desire. Judgements about harm, violence and the location of evil were thus slippery. The frequent use in nineteenth-century press reporting of court proceedings of the term “girl” for both a female child and for an adult woman prostitute evidences the difficulties experienced in solidifying the social (and legal) boundaries between the innocent child and the sexually knowing temptress. “Girl” is a term I use here, but simply to designate a young female individual that in the context of this argument is not unambiguously a child. 4.

Tyrrell – the Provocative Child Late nineteenth-century social purity campaigners regarded many sexual practices as socially and morally contaminating. Regulation of sexuality up to the First World War was heavily driven by such activists. The 1880s scares over “white slavery” and the trafficking of English teenagers to Belgian brothels, though exaggerated and alarmist, framed regulation in questions about nation, state and the implied depravity of foreigners. Girls subjected to sexual assault were implicated in a diffuse and extensive “social evil.”17 Both feminist and conservative social purists addressed a wider wrong than individual harm. Chastity was a defining attribute of the respectable female. Above all it was through her sexual chastity that a woman or girl established her moral (and thus her social) value. Once activated, female sexuality meant her ready resort to prostitution and seduction. Conservative social purists held that once “fallen,” a girl or woman could never regain her respectability; and in so doing arguably administered social violence against the already sexually abused.18 The sexual precocity of “fallen” girls meant temptation not only for themselves but signally for men. Social purists asked (British) men to rein in their sexual impulses, rather than questioning the nature of such desires. The case law that followed the 1885 CLAA illustrates further how these assumptions came to be written into law through the processes of judicial review and appeal. Such cases raise questions of how “the law,” embodied in the appeal court judges and counsel, imagined what happened to bodies in such sexual encounters; both harm and pleasure. In September 1893, the Central Criminal Court convicted Jane Tyrell (13 years and 8 months) for “aiding and abetting” and also for “soliciting and inciting” Thomas Ford to commit a misdemeanour, to whit of having “carnal knowledge” of herself. It was proved in evidence that she had solicited the sexual contact; such proofs were not infrequently taken as plausible at law. The conviction was overturned on appeal, the grounds being that since the relevant provisions of the CLAA had been drafted for the purpose of “protection,” it would be a “reductio in absurdem” if the act was

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relied upon to underpin a prosecution of an underaged girl. Jane Tyrrell lacked the necessary mens rea but was nevertheless accepted to have the sexual and social capacity to initiate sexual contact. Chief Justice Ld Coleridge saw the CLAA as having “the objective of protecting women and girls against themselves” (i.e. rather than against the men involved), indicating both the fragility of their sexual chastity and their diminished capacity for rational consent. Dominant constructions of femininity saw these two things as not unrelated. The prosecution also argued that irrespective of whether it was an impossibility for an individual to incite an offence against themselves “. . . it was an offence not merely on herself, but against the State.”19 The collectivity of respectable citizenry as much as Jane Tyrrell were victims. In different ways the Court of Appeal accepted that a 13 year old was entirely capable of initiating consensual sexual intercourse but also subsumed the harm (if any) done to Jane Tyrrell in wider formulations of social evil and moral danger. In Sumner’s formulation, there is more here of the violence of censure than the censure of violence.20 5.

Competing Discourses, Professionalisation and Legal Review between the Wars Age of consent was next reviewed, though not changed, between the wars. Parliamentary Committees on England and Scotland reported in 1925 and 1926. Sexology had by then emphasised the inevitability and pleasure of desire as well as its potential variety but had also given a new kind of scientific legitimacy to dominant models of male insistence and female submission.21 Social psychology gave a fresh array of reasons why premature sexual activity was deleterious to an adolescent’s future development; “not only unfortunate impressions but severe neurosis may persist in later life.” This Freudian concern for psychological harm is still, however, morally inflected. Early sex will “ confound (a child’s) sense of right and wrong.”22 Furthermore, eugenics and social darwinism deplored deviant sexual activity through fears of racial degeneration. Anxieties about sexuality and social stability, heightened during the First World War and epitomised in the postwar persona of the “flapper,” were confronted by this rather different set of discourses and structures. Without taking on uncritically all of Garland’s formulations, the interwar proliferation of institutions and expert opinion around the child certainly looks like penal-welfarism. Pamela Cox has shown how the formula of “care and protection” enabled the institutionalisation of an array of both victimised and delinquent girls whose deviance was attributed in both newer medical and older moral discourses to premature or excessive sexual development.23 If penal-welfarism aimed to manage delinquency in a liberal, collectivist state, the persistence of melodramatic moral discourses kept the notion of evil in play. The perceived increase in illicit sexual activities during wartime had been challenged in part by the heavier policing of women and the imposition of curfews in military towns. A notorious provision under the Defence of the

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Realm Act, 1918 (40D) had authorised the forcible removal for treatment of any woman known to be a source of venereal infection.24 VD was a major concern, with the debate veering between health education arguments for more information and access to treatment and more conservative positions which still emphasised the potential moral contagion of too much knowledge. 1920s teens could buy into a racy, sexualised leisure culture. Lesley Hall cites a diarists’ reminiscence of “all the little girls in the 1917 Club who used to run about talking about libidos and orgasms.” A good deal of casual and sexy dating stopped short of intercourse, but nevertheless, the sexual knowingness of the flapper, able through paid work to delay marriage, seemed alarming in a number of quarters.25 Between the wars, amongst the cases it decided around sexual consent, the Appeal Court was exercised several times by appeals arising from the operation of the Criminal Law Amendment Act of 1922. The 1885 Act had established a defence to a charge of “carnal knowledge” where the girl had consented and the defendant could prove he had a “reasonable belief” that she was 16 or older. The 1922 legislation removed the (by now notorious) “reasonable belief” defence, but made an exception for young men defendants under 24 years old on a first charge.26 The practice had grown up of adding an indictment for indecent assault to one of carnal knowledge. This covered the eventuality of the evidence not supporting the greater charge, but also positioned sex-with-minors as assault. Where young male defendants after 1922 relied successfully on “reasonable belief,” because the facts of the intercourse had necessarily been proved, they were finding themselves automatically convicted of indecent assault. Was such arguably consensual sex violent? Was it evil? The Appeal Court decided against young men who were physically violent or who hunted in packs; such stories matched known paradigms of rape.27 However, where defendants appeared respectable, reliable and moderate in their sexual practices, the model of sexual relations invoked became a romance narrative of normal courtship gone a little astray. The girl, though under-aged, had necessarily to be represented as an unharmed, consenting party to intercourse, not the victim of sexual assault. The 21-year-old defendant in R v Keech (1929) was of the “highest character.”28 He had intended to marry 15 year old Lily Bird, but had been prevented by the 1929 Marriage Act. She was pregnant and he was paying her a voluntary 10 shillings per week maintenance. On appeal his 1 month’s sentence was reduced to 1 day and he was discharged. “Reasonable belief” called for evidence of an adolescent girl’s capacity to consent and often found it in her appearance. Lily Bird’s mother had testified that she “looked eighteen.” Visual witness, or autopsy, is particularly culturally credible. The capacity to consent was read off from bodily clues that signed premature female sexuality which, though in other contemporary circumstances indicated irrationality and delinquency, here were taken to evidence rational consent. Gender, says Gatens, is “a material effect of the way in which power

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takes hold of the body.”29 The appearance of sexual maturity in an adolescent was held to shape her sexual behaviour and thus her social identity. (By 1929 all adult – sexually mature – women were considered sufficiently rational to vote). The judgement in R v Maughn (1923) had mitigated a 19 year old youth’s sexual responsibility; he was “a boy who is tempted and induced to have carnal knowledge of a girl who misrepresents herself to be over sixteen, and who appears to be so.” Hers was thus a wilful pass, in terms of claiming legal identity but its vehicle was an embodied sexuality which both psychological and moral discourses naturalised.30 Respectable young men (boys) like Keech and Maughn were vulnerable to temptation because of their youth and so themselves acquired a limited amount of protection from the law. They could be explained by both Victorian moral restraint and by modern sexology, as exhibiting the right kinds of manly desire but making fairly minor mistakes in its management. In the courts, expert witnesses may increasingly have expressed views shaped by psychological knowledges. Nevertheless, given the constraints of precedent and the fuzzy drafting of statute, when imagining what happened to bodies, courts decided specific cases by working between new knowledges and more longstanding legal logics, both of which ignored (or misread) power and occluded harm. Despite anxieties about rising juvenile delinquency in the 1920s, the professional and discursive parameters of welfare as the appropriate response to youthful disorder continued to expand. The 1933 Children and Young Persons Act gave juvenile courts jurisdiction over children and “young persons” aged under 17 who were categorised as neglected, abused or offending. Rehabilitative objectives bound “protection” with “training,” its goal the production of (gendered) citizens.31 The Appeal Court in 1937 was willing to categorise as “child” a 13½ year old who had accepted a ride in a lorry and gone off to the woods with Ronald Harling, who there (with her “consent”) had “carnal knowledge” of her.32 Equivalent behaviour had in 1895 evidenced the sexual initiative of 13 year old Jane Tyrrell and put her at risk of judicial punishment. The interwar juvenile justice and welfare systems blurred definitions between deprivation and depravity and saw both as linked causes of moral (sexual) danger to adolescent girls. The “weakling” girl assaulted by Harling was herself likely to be institutionalised. The 1933 Act also brought more mid-teens girls, including 16 year olds, into the penal welfare net as in need of “care and protection,” effects it seems not unconnected with the stability of statute and case law on age of consent; thus social evil seemed rather more amenable to management. Disciplinary regimes had clearly shifted though the substratum of sexual abuse which they “discovered” may not have.

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Come on Silly The Second World War re-opened concerns about illicit sexuality and its effects. Suffolk was a rural and fairly impoverished county in the late 30s. Because it became the site of large numbers of airfields, the influx of soldiers, airmen and construction workers suddenly produced a larger, younger population, and boosted the ailing economy. As one Bury St Edmunds diarist wrote in 1942, “The town is simply packed with people, natives and outsiders . . . At night, soldiers loiter on the town pavements watching for girls, and the girls here think it is just lovely.”33 This hedonistic and highly sexualised leisure culture proved exciting (if sometimes dangerous) for many women, girls and boys. This was a national phenomenon of course, but had particular impact in this conservative county. In October 1943 the Bishop of Norwich fulminated against “[t]he behaviour of many of our women – and peculiarly of quite young girls – in town and village alike in casual acquaintance with soldiers, English or foreign, [which] is a disgrace to their sex and the nation.” Despite the shifting rhetorics of penal-welfarism, in this moment of national crisis sexual danger was again represented as a social evil. Although some East Anglian voices sought to allocate blame more equitably, most dominant definitions of “the moral slump” highlighted the conduct of teenage and adolescent girls, for whom the Suffolk establishment rushed to provide talks in school by doctors, girls’ clubs and rescue homes – as well, of course, as probation orders. The perceived breakdown of the family in wartime had produced these apparently prematurely eroticised feminine subjects who blurred the normative boundaries between childhood and adulthood.34 Despite this moral panic, the local courts were little exercised by sexual assault cases involving teenagers. Such matters were dealt with elsewhere and otherwise (if at all). One might imagine – though of course one does not know – how the experience of unacknowledged sexual violence was “folded into everyday relationships.” Nevertheless three Suffolk Petty Sessions cases of 1942 and 3 are telling. These are provincial, lower courts, interpreting and not making law. Furthermore the depositions enable an albeit mediated opportunity to hear something of what under-aged girls and men were saying when called upon to account for their sexual conduct by the court and the police.35 Reg Bamford, a married soldier, attended a village dance. He paired off with Agnes Ward, whom he claimed he did not know was 15. It was her first dance, but she knew the etiquette. Her friend, Ruth, was “with” an airman, and she “got off” with Bamford. Their erotic moment during which she claimed – and he flatly denied – he sexually assaulted her, ended when by accident or design she rolled from the grass verge of the lane into a waterfilled ditch and was rescued by neighbours. Clearly pushed by questions in court, she carefully delineated the boundaries around consent; “I did not meet him by arrangement but I did not tell him to go away. I don’t know why I did not shout for help. I did cross the road without struggling but I did not lie

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down on the grass. . . . I was quite calm till I fell into the ditch.” As far as he was concerned it was a harmless bit of necking after 6 or 7 pints of mild. Her analysis is more knowing about the etiquette of teenage sexual encounter; she did successfully end the moment of intimacy (or violence) by screaming for help.36 An RAF airman who hung out with a servant in the streets of Saxmundham tried repeatedly to “mess around with her,” said she was “silly” for refusing, exposed himself and speculated that he could compel her by hitting her on the head “but had no intentions of doing so.” She had just turned 16 and was outside the protection of the age of consent. We know most of the story through her statement, which however emphasised his words, his agency and her powerlessness. A passing motorist stopped to rescue her and escorted the young man to the police where he corroborated her story without scruple.37 She got on her bike and rode home, having managed to ward off unwanted intercourse through passive resistance. George Griffin picked up 14 year old Audrey Bennett in his lorry, purportedly asking for directions, and sexually assaulted her, despite her protests and resistance. Her story, laced with euphemism (“he did what he shouldn’t do”) but explicit in its detail, is a narrative of abduction and physical coercion as well as aggressive persuasion. His story is to do with consensual sex and a “silly” girl who “looked 17,” smiled in invitation and then changed her mind and struggled.38 This was the only case of the three that resulted in a guilty verdict. Suffolk magistrates, part of the respectable public opinion worried at wartime sexual activity, were nevertheless wary of conviction when teenage girls might be thought to be colluding. They recognised harm most easily when accompanied by physical violence. These men were insistent in their pursuit of sex, but did not see their conduct as coercive, let alone “evil.” They elided young women’s social and sexual consent.39 They did not read these teenagers as children but as sexually knowing and “attractive,” though the recurrent use of “silly” encodes the eroticisation of littleness and reads refusal as coy flirtation by the subordinated sexual object. Before the law, girls mobilised tropes of victimisation, passivity and powerlessness to secure its protection. 7.

Conclusion Given models of desire (generally coded masculine) which are proactive, motile and go-getting, if not plain predatory, the desiring subject relates to the eroticised object which incites desire through pleasures produced by risk, temptation and “provocativeness.” Attraction is constituted across distance and difference that intimacy (inevitably unsuccessfully) seeks to collapse. The object, be it male or female, is to an extent at least feminised as he/she/it is eroticised, across potentially shifting power dynamics. To the extent that law has naturalised power differentials by gender it has had only the fairly blunt conceptual tools of “assault,” “indecency,” “carnal knowledge” and of course “rape” to adjudicate what kinds of sexual

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encounter constitute what kind of offence.40 By setting an age of “consent,” the law aims to “protect” a person it positions as a “child.” But what a “child” might be is gendered and historically specific. The protection afforded by the age of consent has often been understood in terms of the prevention of wider social harm, recurrently amplified through rhetorics of “evil.” The reasons for “protecting” that child have not been formulated around the defence of individual rights. Rhetorics of protection have constituted their object through the imperfect ability for rational consent, inscribed on the body, not through vulnerabilities to the complex and nuanced power differentials and potential violences in sexual encounter.

Notes 1. Waites, 2003; Waites, 2002; Waites, 2001. 2. When a 1916 prosecution appealed to a jury “to protect young girls from men like these” the defence counsel countered by asking for the “protection” of his client from conviction. R v Banks (1916) 12 Cr App R, 74; (1916) 2 KB, 621. Compare Shah. 3. Ferguson. 4. A flurry of debate as the 2003 Sexual Offences Bill went through parliament asked whether the act would criminalise consensual sexual activity short of intercourse by people under 16. John Carvel, The Guardian, 11 July, 2003; David Batty, The Guardian, 24 November, 2003; Miranda Sawyer, Age of Consent, Channel 4, 19 November, 2003. 5. Stanko, 12; D’Cruze and Rao; Kleinman. 6. For the earlier legal history, see Simpson, 182-185. 7. Weiner. 8. Stevenson, 96. 9. Walkowitz, 1980. 10. Offences Against the Person Act 1875. 11. Radcinowicz, 329. 12. L. Jackson; D’Cruze, Crimes of Outrage; Suffolk Record Office, (SRO), BB2-6. 13. Giddens, 60; Bourke; Stoler; Hearn, 157. 14. Quoted in Hyams, 133. 15. Mason, 210-212. 16. L. Jackson, 122-123. 17. Mort, 102-106; Bland, ch 3. Compare Robertson; Daily Telegraph, 3 April, 1885; “English Girls Being Systematically Entrapped,” The Sentinel, March, 1880, 1; ibid, April 1880, 4; Gorham; Walkowitz, 1992.

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Protection, Harm and Social Evil 18. Society for the Rescue of Young Women and Children, 18th Annual Report year ending 31 March, 1871, published 1872, 23, 22. “It is not that there is a large amount of open criminality amongst female juveniles, as a means of giving a livelihood, but that a large number at a very youthful age, are led astray from virtue, and having fallen, become an easy prey to subsequent temptation.” 19. QBD 710 R v Tyrrell, 16 December, 1893; Times 18 December, 1893, 14. 20. Sumner, 4-5. 21. M. Jackson. 22. Cmd 2561, 1925, xv 905; L. Jackson, 153. 23. Garland, 1985; Garland, 1990; Garland, 2001; Cox, ch 6. 24. D’Cruze, “Crime”; Woodeson; Hall, 95. 25. Davidson, 75; Hall, 99; D’Cruze, “The Villa Madeira and the Eastbourne Foxes.” 26. Radzinowicz, 331. 27. Compare R v Blackman, 21 Cr App R, 132 (1929), D’Cruze, Crimes of Outrage, and articles by Jones and by Stevenson in D’Cruze ed., Everyday Violence. 28. 21 Cr App R, 125 (1929). 29. Minkley and Legassick; Hartog, 261; Gatens, 66. 30. 17 Cr App R p. 103; (1923) 2 K B p. 404; Lawes 1929 21 Cr App R 45; Cox. 31. Hendrick, 183-185; Bailey, 165, 167. 32. R v Harling (1937) 26 Cr App R, 127; (1938) All E R, 307; R v Donovan (1934) 2 KB, 498; 25 Cr App R, 1. 33. Mass Observation diarist, Winifred Last, quoted in Johnson, 87. 34. Cooper; Johnson, 96-105; Rose. 35. Das, 220; Hartismere Petty Sessions tried 111 motoring offences and 32 property cases in 1943 compared to 12 cases to do with sexuality, including prostitution or sexual violence. American servicemen were tried under US martial law, not in British courts. SRO BB6/1/1/6. 36. SRO BB6/1/2/15, 11 June, 1943, 149. 37. SRO, BB2/1/7/1, 27 January, 1946, 126. 38. SRO BB6/1/2/15, 12 April, 1943, 131. 39. Compare MacMartin, 9-40. 40. Nelson and Oliver, 554-577.

Bibliography Bailey, Victor. Delinquency and Citizenship: Reclaiming the Young Offender, 1914-1948. Oxford: Clarendon, 1987.

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Bland, Lucy. Banishing the Beast: English Feminism and Sexual Morality, 1885-1914. Harmondsworth: Penguin, 1995. Bourke, Joanna. An Intimate History of Killing: Face-to-Face Killing in Twentieth-Century Warfare. London: Granta Books, 1999. Cooper, Ashley. Heart of Our History: 500 Years of Village History along the Suffolk Essex Border. Bulmer: Bulmer Historical Society, 1994. Cox, Pamela. Gender, Justice and Welfare: Bad Girls in Britain, 1900-1950. Basingstoke: Palgrave, 2003. Das, Veena. “The Act of Witnessing: Violence, Poisonous Knowledge, and Subjectivity.” In Violence and Subjectivity, eds. V. Das et al., 197-229. Berkeley: University of California Press, 2000. D’Cruze, Shani. Crimes of Outrage: Sex Violence and Victorian Working Women. London: UCL Press, 1998. _______. “Crime,” In I. Zweiner-Bargielowska, Women in Twentieth Century Britain, Ch. 13. Harlow: Longman, 2000. _______. Everyday Violence in Britain, 1850-1950: Gender and Class. Harlow: Longman, 2000. _______. “The Villa Madeira and the Eastbourne Foxes: Gender, Murder and Compromised Respectability in Two Inter-War English Seaside Towns.” Paper to Social History Society Conference, Leicester, January 2003. D’Cruze, Shani and Anupama Rao. “Violence and the Vulnerabilities of Gender.” Violence, Vulnerability and Embodiment, A Special Issue of Gender & History, eds. S. D’Cruze and A. Rao, 16 (2004): 495512. Davidson, Roger. “‘This pernicious delusion’: Law, Medicine, and Child Sexual Abuse in early-twentieth-century Scotland.” Journal of the History of Sexuality 10 (2001): 62-77. Ferguson, Harry. “Cleveland in History: the Abused Child and Child Protection 1880-1914.” In In the Name of the Child: Health and Welfare 1880-1914, ed. R. Cooter, 146-173. London: Routledge, 1992. Garland, David. Punishment and Welfare. Aldershot: Gower, 1985. _______. Punishment and Modern Society. Oxford: Clarendon, 1990. _______. The Culture of Control. Oxford: Oxford University Press, 2001. Gatens, Moira. Imaginary Bodies: Ethics, Power and Corporeality. London: Routledge, 1996. Giddens, Anthony. The Transformation of Intimacy: Sexuality, Love and Eroticism in Modern Society. London: Routledge, 1992. Gorham, Deborah. “The Maiden Tribute of Modern Babylon Revisited.” Victorian Studies 21 (1978): 353-379. Hall, Lesley. Sex, Gender and Social Change in Britain Since 1880. London: Macmillan, 2000.

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Hartog, François The Mirror of Herodotus: The Representation of the Other in the Writing of History. Berkeley, California University Press, 1988. Hearn, Jeff. Men in the Public Eye: The Construction and Deconstruction of Public Men and Public Patriarchies. London: Routledge, 1992. Hendrick, Harry. Child Welfare: England 1872-1989. London: Routledge, 1994. Hyams, Ronald. Empire and Sexuality: The British Experience. Manchester: Manchester University Press, 1990. Jackson, Louise A. Child Sexual Abuse in Victorian England. London: Routledge, 2000. Jackson, Margaret. “The Real Facts of Life”: Feminism and the Politics of Sexuality, c 1850-1940. London: Taylor and Francis, 1994. Johnson, Derek C. East Anglia At War, 1942, 2d ed. Norwich: Jarrold & Sons, 1992. Kleinman, Arthur. “The Violences of Everyday Life.” In Violence and Subjectivity, ed. V. Das et al., 23-58. Berkeley: University of California Press, 2000. MacMartin, Clare. “(Un)Reasonable Doubt? The Invocation of Children’s Consent in Sexual Abuse Trial Judgments,” Discourse & Society 13 (2002): 9-40. Mason, Michael. The Making of Victorian Sexuality. Oxford: Oxford University Press, 1994. Minkley, Gary and Martin Legassick. “‘Not Telling’: Secrecy, Lies, and History.” History & Theory 39 (2000): 1-10. Mort, Frank. Dangerous Sexualities: MedicoMoral Politics in England since 1850, 2d ed. London: Routledge, 2000. Nelson, Andrea and Pamela Oliver. “Gender and the Construction of Consent in Child-Adult Sexual Contact – Beyond Gender Neutrality and Male Monopoly.” Gender & Society 12 (1998): 554-577. Radcinowicz, Leon. Sexual Offences. Cambridge, Cambridge University Press, 1959. Robertson, Stephen. “The Age of Consent and the Making of Modern Childhood in New York City, 1886-1921.” Journal of Social History (2002): 781-798. Rose, Sonya O. “Girls and GIs: Race, Sex and Diplomacy in Second World War Britain.” International Historical Review 19 (1997): 146-160. Shah, Svati. “Prostitution, Sex Work and Transnational Formulations of ‘Violence’: Discursive and Political Contexts for Five Texts on Paid Sex, 1987-2001.” Violence, Vulnerability and Embodiment,” A Special Issue of Gender & History, eds. S. D’Cruze and A. Rao, 16 (2004): 794-812. Simpson, Anthony. “Vulnerability and the Age of Female Consent: Legal Innovation and its Effect on Prosecutions for Rape in EighteenthCentury London.” In Sexual Underworlds of the Enlightenment, eds.

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G. S. Rousseau and R. Porter, 182-196. Manchester: Manchester University Press, 1987. Stanko, Elizabeth. “Introduction.” In The Meanings of Violence, ed. Elizabeth Stanko, 1-13. London: Routledge, 2003. Stevenson, Kim. “‘Ingenuities of the Female Mind’: Legal and Public Perceptions of Sexual Violence in Victorian England, 1850-1890.” In Everyday Violence in Britain, c 1850 c 1950: Gender & Class, ed. S. D’Cruze, 89-103. Harlow: Longman, 2000. Stoler, Ann Laura. Carnal Knowledge and Imperial Power. Berkeley: University of California Press, 2002. Sumner, Colin. “Introduction: the Violence of Censure and the Censure of Violence.” In Violence, Culture and Censure, ed. Colin Sumner, 1-6. London: Routledge, 1996. Waites, Matthew. “Equality at Last? Homosexuality, Heterosexuality and the Age of Consent in the United Kingdom.” Sociology 37 (2003): 637-655. _______. “Inventing a ‘Lesbian Age of Consent’? The History of the Minimum Age for Sex Between Women in the UK.” Social & Legal Studies 11 (2002): 323-342. _______. “Regulation of Sexuality: Age of Consent, Section 28 and Sex Education.” Parliamentary Affairs 54 (2001): 495-501. Walkowitz, Judith. Prostitution and Victorian Society. Cambridge: Cambridge University Press, 1980. _______. City of Dreadful Delight. London: Virago, 1992. Weiner, Martin J. Men of Blood: Violence, Manliness, and Criminal Justice in Victorian England. Cambridge: Cambridge University Press, 2004. Woodeson, Alison. “The First Women Police: A Force for Equality or Infringement?” Women’s History Review 2 (1993): 217-232.

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Chapter 4 Sin, Scandal, and Disaster: Politics and Crime in Contemporary Turkey Ruth A. Miller The August 17, 1999 earthquake in western Turkey left 15,000 people dead and 600,000 homeless. It also acted as a focal point for heightened ideological debate among the Turkish population. The earthquake was a natural disaster, but it quickly became more than that. Its size, the extent of the devastation, the fact that it had happened in the “civilized” western part of the country rather than in the “underdeveloped” eastern part – where natural disasters are supposed to happen1 – all prompted debate, discussion, and above all an attempt to endow the destruction with meaning. In the days following the first few aftershocks, state-owned and secularist television stations used analyses of plate tectonics to broadcast images of an angry Arabian peninsula – dominated by jagged arrows representing the Wahhabi Saudi state – aggressively slamming into a peaceful Turkish Anatolian plateau.2 Islamist newspapers strongly implied that the earthquake was divine punishment for the moral depravity of the current Turkish government.3 Liberals used the opportunity to attack a cumbersome and overwhelming state structure for its slow response to the suffering.4 And radical nationalists – such as the neo-fascist health minister, Osman Durmu· – created martyrs to Turkish racial purity by, for example, refusing to allow blood transfusions or aid from Armenian and Greek donors.5 But in the midst of all of these attacks and counter attacks, the group that eventually incurred the most popular and political wrath was not the Islamists, the secularists, the state, or religious minorities – it was the building contractors. The contractors, it turned out, had been corrupt. They had bribed state inspectors, they had used shoddy materials and pocketed the funds left over, and they had received their contracts – both public and private – via nepotism and favouritism. The result was a death toll that rose into the tens of thousands. In the weeks following the earthquake, stories circulated of contractors set upon by angry mobs, while local authorities looked the other way.6 Many in construction simply left the country. Finally, the state opened a formal inquiry into the relationship between its bureaucrats and the contractors – the eventual goal being to root out the corruption inherent to the building industry. At that point, the discussion in the media also switched from the contractors’ role in the earthquake’s carnage to their role in the corruption of state institutions.7 Within weeks of the earthquake, that is, the evil perpetrated by the contractors had shifted from a personal evil in which they were responsible for the deaths of thousands of individuals, to a political evil in which they were responsible for sullying the bureaucratic structure of the Turkish state.

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The victim of their crime ceased to be the individual, and instead became the nation. Eventually, the contractors, the evil that they had perpetrated, and the guilt that they had incurred were all co-opted by a renewed discourse of state purity. That the contractors became the targets of popular and political anger at all is worth discussing. Yes, their dishonest or simply incompetent practices were the cause of death and misery. Yes, natural disasters and epidemics rarely occur without an immediate attempt to attribute to them (usually negative) moral value. Violence – even the arbitrary violence of an “act of God” – must have meaning, and someone must be responsible for it. Thus we see, to choose at random, Eastern European immigrants to the United States blamed for nineteenth century typhoid epidemics8 and “Communists” or “Jews” blamed for the 1933 German Reichstag fire. But why attack the contractors specifically, and not the cumbersome state denounced by the liberals, the religious/ethnic minorities blamed by the fascists, the religious extremism targeted by the secularists, or the atheist ministers condemned by the Islamists? I would argue that the contractors, more than any of these other groups, could most effectively embody the contemporary Turkish understanding of “evil.” By 1999, “evil” – especially in the public sphere, where the civic and the moral overlap to a large extent – had a specific meaning, tied to the purity of state institutions. And by 1999, it could be applied only to corrupt bureaucrats or to those responsible for their corruption – in this case the building contractors. This meaning, however, had been in the process of articulation over the course of a century and a half, and it owed its existence to trends in Ottoman political-legal thought that existed long before the Republican Turkish state had even been imagined. It was in the Ottoman period, and not in the Turkish Republic, that both civic and moral evil had become key supports in a proto-authoritarian state structure. One of the defining characteristics of power in the modern period is the rationalization and bureaucratisation of law. Legal codification, or at least debates over the merits of legal codification, became an almost global phenomenon in the nineteenth century as state power was centralized and made uniform.9 The fact that often this rationalization, bureaucratisation, and codification occurred in a colonial or quasi-colonial context does not detract from – and in fact underlines – the normative nature of the process. As a number of scholars have noted, to the extent that colonialism was a process of identification, assimilation, and control, legal codes helped and even provided the foundation for this process.10 At both the imperial centre and in the “periphery,” the rationalization of criminal law in particular standardized not just the concept of crime, but also the concept of evil, victim, and perpetrator. The Ottoman Empire did not escape these trends. Between 1839 and the end of the First World War, the Ottoman legal system also underwent a massive change as political power was re-situated. In the Ottoman Empire

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too, codes replaced what was largely a case-precedent system, liberal neologisms for concepts such as “citizen” and “public opinion” were incorporated into and legitimised by these codes, and the relationship among state, citizen, and law became self-consciously rational.11 Criminal law sought to eliminate the “deviant” – be it local power, alternative political identities, or threats to a modern, uniform, moral standard. Finally, the religious establishment began to play a new role in defining “evil,” creating a situation in which threats to the political or social norm became as dangerous as threats to religious orthodoxy. As a result, criminality and evil began to occupy a new and fluid position in the Ottoman imagination. As Ottoman and then Turkish criminal law was repeatedly re-interpreted over the course of the nineteenth and early twentieth centuries, what could be defined as “criminal” or “evil” also changed. In particular, it was during this period that religious or moral evil was conflated with political or bureaucratic evil. Indeed, by the turn of the twentieth century, evil had become largely a political rather than a moral category, setting the stage for the Turkish Republic’s eventual 1927-1938 adoption of Mussolini’s fascist code of criminal law.12 The abstract concept most in need of legal protection had by the 1930s become not “the individual,” “God,” or even “society,” but “the state.” A corrupt bureaucratic functionary thus posed more of a threat to Ottoman and Turkish selfdefinition than a murderer, an apostate, or a sexual deviant. This trend was very much a part of nascent legal modernity in the late Ottoman Empire. Between 1841 and 1859 in particular, criminality became more and more overtly an issue of threatening the bureaucracy or the state rather than the individual, society, or God. Two categories of criminality became the almost exclusive target of codes promulgated over these decades: on the one hand, legislation addressed rebellion, “banditry,” revolution, and similar collective external threats to political legitimacy; on the other hand, it addressed bribery, corruption, graft, and similar discrete internal threats to uniform bureaucratic function.13 In each of the new criminal codes, articles on these issues range over a number of pages, and go into great detail about the various ways in which a group or an individual can be rebellious or corrupt. Articles on such issues as murder, theft, rape, and the like are, contrarily, comparatively short, general, and in many cases perfunctory to the point of meaninglessness. Indeed, when articles or chapters on “personal” crimes do occupy a significant amount of space in nineteenth century Ottoman codification, it is at moments when the moral authority of legislation against personal crime is needed to underline the threat posed by political crime. The 1851 code, for example, contains a long article devoted to murder and the criminal nature of “attacks on life.” But only the first few lines discuss what we would ordinarily understand as “murder” – that is, an attack on the life of an individual human being. The rest of the article focuses on rebellion and treason, explicitly privileging not just the rhetorical, but the legal value of the

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“life” of the state over the “life” of the individual.14 Similarly, the chapter on “crimes against property” – a section ostensibly concerned with theft of various kinds – contains only one article actually devoted to theft, with the rest of the text focused on bribery, bureaucratic corruption, and the importance of a uniform system of tax collection.15 The state and the bureaucracy, that is, very quickly became the only “victims” that modern Ottoman criminal law sought to protect. From the outset, political crime was the crime of paramount – and to some extent sole – importance. It was the religious establishment, however, that turned this political and bureaucratic crime into sin. The Ottoman religious establishment played a key role in the transformation and modernization of law in the Ottoman Empire. Ulema – scholars of Islamic law attached to the me·ihat, or religious hierarchy – occupied many of the important posts in the late Ottoman Ministry of Justice and made up the vast majority of the functionaries in the new legal system.16 These ulema simultaneously became mouthpieces for a number of statements issued by the bureaucracy that endowed with religious legitimacy both the centralization and the rationalization of political power.17 The result was a uniquely modern relationship between the religious establishment and the state. Whereas in the pre-modern Empire, dialogue between the two spheres certainly existed, it was only after 1839 that the two became effectively one, with religion as a pillar of uniform state power.18 The ulema – former arbiters of religious, social, and personal morality – began to operate instead in a system focused exclusively on political morality. Their role as interpreters of human evil was effaced by their role as interpreters of bureaucratic crime; sin and crime were conflated and, to the extent that crime had become solely political, sin came to mean any anti-state or antibureaucratic activity. It is not, for example, an accident that anti-state activity was more often than not designated as “banditry.” Everyone from political conspirators to nationalist revolutionaries to disobedient soldiers was accused of “banditry” and tried and convicted accordingly.19 This is not just because banditry implied a collective criminality that made it feasible for a state to go after others in the “gang” without proving individual culpability.20 Nor is it solely because attributing to a bandit the aura of martyrdom that is often attributed to revolutionaries can be difficult. In the Ottoman context, “banditry” was already a religious crime. It was one of the “classical” had crimes in Islamic law, and thus the term had a tinge of sinfulness already built into it. By accusing revolutionaries and rebels of banditry rather than – or in addition to – treason or even rebellion, the state was thereby underlining the evil as opposed to criminal nature of their act. Even more than rebels, however, corrupt bureaucrats had become threats to the purity – and thus identity – of the state. By the turn of the twentieth century, nearly 40% of the vacancies created in the Ottoman legal hierarchy were the result of functionaries having been dismissed and

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prosecuted for corruption.21 This is compared to 5% of the vacancies created fifty years earlier. It is, however, safe to say that functionaries had not become progressively more corrupt over the years, at least not in a concrete, measurable manner. Instead, they had become – more telling – the victims of a new mania among Ottoman administrators for the regularity and uniformity of the bureaucratic process. A regulation of 1915 eventually codified the policing of legal functionaries, prohibiting “social interaction” while on the job, especially in corridors or with people on official business.22 Deviation from the bureaucratic norm, that is, was simply no longer tolerable, and had to be stopped. Finally, between 1933 and 1938, the Turkish Republican government adopted all of the salient sections of Mussolini’s fascist code of criminal law.23 The two most important of these were chapters on “crimes against the nation or race” and “crimes against the personality of the state.” The first targeted for the most part “internal” threats to a uniform national or racial norm. The second targeted “external” threats to bureaucratic structures or political self-definition. In general, the fascist ideology embodied in both sections self-consciously sought to use the concept of criminality to protect the state from any conceivable attack on its “life” or its “honour.”24 The evil that had formerly been associated with violent aggression against the individual or religious morality was thus completely transformed by fascist philosophy. In both fascist Italy and early Republican Turkey, “evil” came to mean instead any aggression against the rights, honour, or safety of the nation-state. Indeed, as the first Republican Turkish Justice Minister argued, criminal law had to protect the rights of the state, the rights of the revolution, and the rights of the people, in that order. He concluded: Our criminal code is very harsh because the revolution is very jealous. But it is both harsh and scientific. Those who will be afraid of it, and those who have need to be afraid of it are those who are against the interests of the Turkish nation, against the rights of the Turkish nation, and against the revolution; and these people ought to be afraid.25 The trajectory of Ottoman criminal law, the conflation of religious evil and political crime, and the coming together of personal corruption and bureaucratic corruption had all set the groundwork for this moment. Personal evil and political evil had become one. At the same time, it must be emphasized that the rationalization and bureaucratisation of the law that led to this situation were general and largely international phenomena in the modern period. In nearly all modern criminal codes, the individual disappeared as the victim in need of protection and was replaced by an abstract collective concept such as “society,” the “social body,” or “the state.”26 Nearly everywhere, that is, evil had become a collective (and mildly authoritarian) issue rather than a personal issue.

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What led the Ottoman Empire and Turkey in a more radically authoritarian and eventually fascist direction was therefore not so much the elimination of the individual, but the unification of the social body or society and the state. It was only when the needs, desires, and identity of “society” were manifested in bureaucratic and political institutions, when it was these institutions rather than “society” that criminal law protected, that the line between a moral or even religious “evil,” and a civic or bureaucratic “criminal,” disappeared. And it is the elimination of this line – the fact that political crime had to be evil – that can help us understand the unfortunate position of the contractors following the 1999 earthquake, as well as popular reaction to scandals such as “Susurluk.” “Susurluk” requires some elaboration. In November 1996, a Mercedes with a trunk full of automatic weapons crashed near the Turkish town of Susurluk, killing all but one of its passengers. Those who died included Abdullah Çatl, a radical right neo-fascist assassin who had been sought by Interpol, Hüseyin Kocaday, a senior member of the Istanbul police, and Gonca Us, Çatl’s common law wife. Sedat Bucak, a Kurdish tribal leader and close associate to Tansu Çiller, the former Turkish Prime Minister, survived with a dubious case of amnesia.27 The Susurluk scandal, as it came to be called, prompted widespread discussion in Turkey about violence, authority and, in a quite basic way, evil. Stories of state violence that had been believed, but deemed apocryphal, suddenly gained legitimacy, and the “accidental” or mysterious deaths of various prominent politicians and business leaders were re-evaluated in the light of new information. The fact that all of these people were found physically together seemed to demonstrate the truth of claims that before had seemed dubious or the work of conspiracy theorists. Nearly ten years later, “Susurluk” remains a byword for pervasive criminality and corruption. The sort of criminality or corruption that it represents, however, is not perhaps what one might expect. Çatl began his career as a young, radical right militant, soon became a heroin dealer, and eventually graduated to assassin.28 Over the course of the post-Susurluk investigations, it came out that Kocaday had been involved in 22 cases of homicide or torture and held a major share in Turkey’s illegal gambling market.29 Us, despite her honorary title of “Miss Cinema 1991,”30 was for all intents and purposes a prostitute. And Bucak, even given his ties to Tansu Çiller and his pro-state activities, represented an ethnic group that directly threatened the official ideology of uniform Turkish national identity. In other words, attributed to the passengers in the Mercedes were classical or religious evil in the form of murder, torture, and prostitution, social evil in the form of drug dealing and gambling, and even nationalist evil in the form of a threatening ethnic identity. Susurluk, however, is now associated almost exclusively with political evil. In the press, among the population and in the papers of the state investigators, the question that is repeatedly asked is how such extensive bureaucratic corruption – in the form of state ties to these criminals – could

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have occurred. Çatl and Kocaday are not evil because they killed or maimed other human beings, because drug dealing is immoral, or because gambling is theft. They are evil because these activities polluted the state structure. Us is not evil because of her deviant sexuality, and Bucak is not evil because of his deviant ethnicity. They are evil because their deviance personifies bureaucratic corruption and the entrance of inappropriate power networks into bureaucratic function. Susurluk, that is – much like the 1999 earthquake – led the Turkish population and government to question, to attack, and eventually to correct the rationality of the bureaucracy, the purity of the state, and the honour of those associated with it. Personal evil was still invoked – but only to the extent that it highlighted the political. Newspaper articles, scholarship, and government reports almost always follow the same analytical framework when addressing Susurluk. First, there will be biographies or sketches of the various individuals who were in the car. These biographies will almost always include detailed analyses of the ways in which each individual was personally corrupt. Second, there will be a more theoretical section, discussing the extent to which state institutions and state networks have been infiltrated and warped by this personal corruption. Hamit Bozarslan’s excellent study of the incident, for example, consists of three quite evocative biographies, and then a conclusion that argues that the solidarity networks of the 1980’s and 1990’s have a much more complex texture than did the traditional tribal or religious allegiances of the past. They are capable of using the state not only at a local or provincial level – becoming mayor or corrupting a civil servant, as in the past – but at the very level of the central power, or even from the outside . . . .31 Although Bozarslan’s project is not to posit the prior existence of a pure Turkish state that was then tainted, the re-imagining of personal evil as political corruption is very much present in his study. Every detail of Çatl’s and Bucak’s criminal pasts is presented for the reader’s consumption. The lesson to be learned, however, is a lesson about state networks, political power, and the post 1980 spread of bureaucratic corruption. Veli Özdemir’s Susurluk Documents follows a similar pattern. It consists of a number of biographical interviews and interrogations conducted by a parliamentary committee charged by the Turkish government with fact finding. These interrogations, however, focus almost exclusively on the illicit behaviour of various individuals and only then turn to the question of political crime. Indeed it becomes clear from the transcripts that the committee was following an exact procedure: they would first reinforce the personal nature of the scandal, second invoke the evil perpetrated by the various individuals

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involved in it, and finally link this personal evil to the political crime that the scandal represented. The committee was not remotely interested in “crime” per se, in accuracy, in law, or even in legal “truth.” Instead they were seeking personal confessions of immoral activity – sin that could eventually be turned into bureaucratic crime. The interview with Mehmet Ayar, the protector of the “Susurluk Gang,” for example, begins as follows: “first of all, welcome. I hope that your daughter recovers from her illness soon. May God grant her recovery and patience. Hopefully she will be well in a short time . . . .”32 The committee thus places the interrogation immediately into a personal framework. Ayar is not asked his bureaucratic title, his rank, or his time in service. He is made instead to operate outside of these civic and legal norms. From the very beginning, he is defined as a “private” individual, capable of grief, worry, and presumably evil as well. The committee then asks Ayar to give a brief biography. Ayar does so, leaving out neither the date of his marriage nor the birth of his children in discussing key moments in his political career. He then, however, tries to turn the interrogation away from the personal. He starts to speak in the abstract about state-sponsored black market activities, competition among various intelligence and police agencies, and the ways in which state violence was co-opted by extra-state organizations. He makes every effort to talk about these issues as politically corrupt or criminal, denying them the attendant evil that the committee is trying to attribute to them. But the committee does not allow him to proceed in this style. They repeatedly stress the personal nature of the interview, and whenever Ayar talks in the abstract, they lead him back to his own private impressions. Indeed, when he balks at revealing these impressions, reminding the committee that they are personal and therefore likely inaccurate, they respond: “We are not making a classification as to whether this is right or that is wrong, whether this is guilty or that is innocent. If we did that the boundaries that you’ve mentioned would make sense . . . .”33 Whereas Ayar worries about accuracy – or even “truth” – that is, the committee worries about morality. The committee is not interested in discovering what exactly various state functionaries did and whether or not these activities were criminal – whether these functionaries were “guilty” or “innocent” – but discerning the extent to which the situation as a whole could be construed as personally immoral. Individual legal culpability, legal accuracy, and crime are completely irrelevant to the interview. The committee wants instead to ensure that the political corruption that is their genuine interest have an attendant sense of personal evil associated with it. The committee needs Ayar to talk about his – possibly completely erroneous – impressions, his personally corrupt activities, because if he does not, the political crime can be nothing more than crime. In the end, Ayar complies, and it is to a large extent a result of his testimony that Susurluk has become the scandal that it has among the

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Turkish population. Ayar himself, although his parliamentary immunity protects him from indictment, has become for many the embodiment of personal evil manifested as political corruption. The 1999 earthquake and the 1996 Susurluk scandal are not usually analysed in the same intellectual framework. On the one hand, we have a horrific natural disaster that caused death and misery to thousands of people. On the other, we have a political scandal that – despite its invocation of statebased violence – for the most part titillates and provides fodder for back page newspaper editorials. Evil, however, can be imagined in a variety of different ways, and so placing both under this rubric should not cause disquiet. But neither should it be surprising that when evil enters the public sphere, is rationalized as “crime” in modern legal codifications, and is standardized as “corruption” in modern bureaucracies, these two very different issues can also overlap. The late Ottoman and early Turkish Republican understanding of criminality and state power in particular created a situation in which the spectacle of a toppled cement building, outside of which surviving family members search for the bodies of their loved ones is morally equivalent to the spectacle of Miss Cinema, 1991’s relationship with a hit man on the run from Interpol. By virtue of the authoritarian and eventually fascist nature of criminal law in the Ottoman and Turkish contexts, both became spectacles of political crime and bureaucratic corruption, and that is all. The misery of a father who has lost his family is co-opted and then abstracted by the state – and the sexuality of Gonca Us is used to turn the administratively deviant into sinners.

Notes 1. “The year 1975 marked a turning point in Cantürk’s life; he started a bus line and got involved in tourism. The same year, however, he also faced a personal tragedy: the earthquake in Lice destroyed the whole town, killing a few of his family members. The indifference of the authorities toward this tragedy provoked his strong reaction.” Bozarslan, 18. Earthquakes in the western part of the country generally attract more attention from the Turkish government than earthquakes in the eastern part. 2. See especially the coverage on NTV. The Eurasian and African plates received little comparative attention. 3. See Fehmi Koru’s numerous articles in the newspaper Yeni ¶afak. 4. See the newspaper Radikal’s coverage in particular. 5. Hurriyet. 22 August 1999. 6. Milliyet. 25 August 1999.

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Sin, Scandal, and Disaster 7. See Sefa Kdk’s writing in Hurriyet. 22 September 1999. Also, Metin Toke’s writing in Milliyet. 4 September 1999. 8. Porter, 424. 9. See, for example, Farmer. For a similar perspective on codification during this period, see Cook. 10. See, for example, Said, 78: “[William] Jones’s official work was the law, an occupation with symbolic significance for the history of Orientalism. Seven years before Jones arrived in India, Warren Hastings had decided that Indians were to be ruled by their own laws . . . to rule and to learn, then to compare Orient with Occident: these were Jones’s goals, which, with an irresistible impulse always to codify, to subdue the infinite variety of the Orient to ‘a complete digest’ of laws, figures, customs, and works, he is believed to have achieved.” 11. See, for example, the “Hatt- Hümayun of Gülhane.” 12. Compare Italy, Penal Code, with Turkey, Code Pénal. The original 1889 Italian Code – adopted by Turkey in 1926 – was “reformed” after 1931 by inserting large sections of the fascist Italian code of 1930 into its text. 13. Ahmed Lütfi, 128-141, 152-163. 14. Ibid, 1851 Code, art. 1. 15. Ibid, chap. 3, arts. 1-9. 16. This conclusion is based upon information found in the following documents from the Ba·bakanlk Archive in Istanbul: †radeler, Dahiliye: 1402, 1836, 32168, 39013, 41072, 43291, 40072, 40040, 40067, 40870, 40840, 45005, 45893, 45932, 45448, 45587, 46008, 46152, 46253, 46700, 47122, 46945, 47443, 4991, 47366, 48866, 50612, 50508, 60705, 63291, 64263, 64444, 64161, 63583, 63712, 64080, 64631, 64690, 64700, 66797, 66449, 66568, 65875, 65163, 65164, 67692, 67997, 67832, 68860, 69323, 68783, 68124, 68459, 68006, 69394, 69718, 71287, 71404, 69857, 69573, 69442, 72036, 81477, 85244, 84119, 82674, 83461, 84989, 86560, 98813, 99860, 100466, 100367, 95480, 95149, 99204; MV: 16306, 7948, 9397, 25790; MM: 1557, 1817, 1819, 1943; AM: 1312-C-11/310, 1313-S-5/5, 1313 – 18/10, 1313-C-23/2, 1314-¶-12/8, 1314-¶-12/11, 1316 – 29/7, 1316-R-20/11, 1316-Za-9/8, 1323-¶-24/4, 1325-R-5/17, 1325-B-1321. 17. For example, Lütfi, 1851 Code, pp. 150-151, in which the bureaucratic goals of the Gülhane Edict are described as “mansus,” or divinely authoritative – a word ordinarily used to describe exegeses of the Quran. 18. Visitors even to the early Turkish Republic noted this modern re-imagination of the role of religion. The government advocated “worshipping the state in place of Islam . . . [whereas] the State still retains the right to interfere in religious matters, the regime

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has practiced tolerance to some degree . . . Islam must conform to the nationalist program.” Merrill, 191. 19. For example, Ba·bakanlk Archive, †radeler, MV 294.7 S.1257. 20. Nathan Brown has noted similar trends in Egypt under British rule. 21. See above, footnote 15. 22. Turkey, Düstur, vol. 7, no. 262, p. 631. 23. Turkey, Code Pénal. 24. Rocco, 10. 25. Öztürk, 1:528. 26. See Ferri. 27. Bozarslan, p. 1. 28. Ibid, 4-5. 29. Ibid, 1, footnote 2. 30. Ibid, 1, footnote 1. 31. Ibid, 22. 32. Özdemir, 229. 33. Ibid, 245.

Bibliography “Hatt- Hümayun of Gülhane,” Osmanl Ansiklopedisi, vol. 6 (Ankara: Yeni Türkiye, 1995): 114. Ahmed Lütfi. Mira’t- Adalet, yahud Tarihçe-i Adliye-yi Devlet-i Aliyye. Istanbul: Kitapç Ohannes, 1304/1888. Bozarslan, Hamit. “A Car Crash and Beyond: Network Building, Solidarity, and Violence in Turkey,” Occasional Paper, Abu Dhabi: The Emirates Center for Strategic Studies and Research (1999). Brown, Nathan. “Brigands and Statebuilding: The Invention of Banditry in Egypt,” Comparative Studies in Society and History 33 (1991): 258-281. Cook, Charles M. The American Codification Movement: A Study of Antebellum Legal Reform. Westport, CT: Greenwood, 1981. Farmer, Lindsay. “Reconstructing the English Codification Debate,” Law and History Review 18 (2000): 397-444. Ferri, Enrico. The Positivist School of Criminology: Three Lectures, ed. Stanley E. Grupp. Pittsburgh: University of Pittsburgh Press, 1968. Italy. Penal Code of the Kingdom of Italy, as Approved by Royal Decree of October 19, 1930. London: HM Stationery Office, 1931. Merrill, Frederick T. “12 Years of the Turkish Republic,” Foreign Policy Reports 11 (1935): 190-192. Özdemir, Veli. Susurluk Belgeleri. Istanbul: SCALA Yaynclk ve Tantm A.¶, 1997.

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Öztürk, Kazim, ed. Türk Parlamento Tarihi: 1923-1927. vol. 1. Ankara: TBMM Vakf Yaynlar, 1993. Porter, Roy. The Greatest Benefit to Mankind: A Medical History of Humanity from Antiquity to the Present. London: Harper Collins, 1991. Rocco, Alfredo. “Les postulats du régime fasciste dans la nouvelle legislation pénale,” Centre International d’Études sur le fascisme 3 (1930): 10. Said, Edward. Orientalism. New York: Vintage, 1979. Turkey. Code Pénal. Istanbul: John Rizzo, 1939. Turkey. Düstur, vol. 7. Dersaadet (Istanbul): Matbaa-y Amire, 1295/1878, 1333/1914.

Chapter 5

Adding Injury To Injury: The Case of Rape and Prostitution in Turkey

†·tar Gözaydn The statutes that criminalized rape in Turkey, from 1926 to 1990, provided that the punishment for the crime would be lessened if the victim was a “prostitute.” In this article I use this praxis to deconstruct “modernity” and “womanhood” in Turkey. The argument I put forward runs as follows: 1. In terms of good and evil, modernity has been perceived as “good” by the founding elite of the Republic of Turkey. “Women” were introduced as a backbone of the modernisation process. Indeed within the emerging Kemalist paradigm (the official state ideology of Republic of Turkey, named after the founder of the Republic, Mustafa Kemal Atatürk), women were bearers of Westernisation, carriers of secularism, actresses in the public realm and would therefore incite a shift of civilisation. A deconstruction of womanhood in Kemalist discourse reveals, however, that a woman earns esteem only if she becomes an asexual creature who at least happens to be able to conceal her sexual self. 2. Law was another important instrument for modernising in late Ottoman and Republican times. To reach the ends of modernity safely, altering not only the public sphere but also the private one, was an intended result of adopting Western codes. After the source legislation of the Italian Penal Code of 1889 (Codice Zanardelli), the Turkish Penal Code of 1926 provided protection only for “virtuous” women preferably positioned primarily as a wife and a mother. Due to this approach, women who had a profession like prostitution were not in a position to deserve protection. 3. Despite the famous myth that the modernisation process, and especially the Turkish Republican founding elite, gave rights to women, there had long been an indigenous women’s liberation movement, at least to a certain extent. Abolition of article 438 of the Turkish Penal Code was one of the first achievements of a second wave of feminist groups in Turkey. 4. The “new” Turkish Penal Code that was adopted on September 26, 2004 (no. 5237) with an effective date of April 1, 2005 regulates rape as one of the crimes under the title “crimes against sexual inviolability,” and includes several provisions against crimes such as intermarital rape and domestic violence. This seems to be quite a drastic change, in the sense that the Turkish Penal Code of 1926, which lasted until March 31, 2005, regulates rape as one of the crimes against the “family order and public morals.” Although the way in which a legal regulation gets applied is critical in a country where 58% of women are victims of violence, a regulation with an obviously different approach than the previous one looks promising.

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“Concerns for Women” in the Ottoman-Turkish Modernisation Process It is a well known fact that the Ottoman modernisation experience started in the state strata to stop the crucial military defeats of the period. The Ottoman ruling elite, the inheritors of the brilliant and great Ottoman Empire, were under the influence of a deep anxiety, which was created by economic, politic and military regression. Additionally the influence of a new ideology was shaking the foundations of the empire and mobilizing the ethnic groups to create their own countries: nationalism. So, in order to escape from coming to an end and to “be modern,” the Ottoman decision-making elite started some “official” modifications such as opening new technical schools and reforming the military system. Meanwhile a new intelligentsia of so-called “Young Ottomans” was emerging. These early intellectuals such as Namk Kemal, ¶inasi, Tevfik Fikret and Ziya Pa·a were somewhat pioneering figures for the Ottoman society. They were trying to reconcile the traditional values, such as Islamic life patterns, monarchy and the crucial role of the state, with western ideas of liberty, democracy and development. Their ideology was kind of a pendulum that represented the traditional Turco-Islamic way of life and western libertarian ideas, which were under the influence of the French Revolution. The new emerging intelligentsia that was almost completely male was deeply interested in women’s issues. For instance, Celal Nuri argued against polygamy, and Halil Hamit in 1910 advocated voting rights for women.1 One of the earliest objections of male intellectuals was against the traditional way of marriage adjustments in the Ottoman society. Men and women were marrying without even meeting/knowing each other, and the marriage adjustments were usually made by the decisions of the parents. It is striking to observe that improving women’s social status and making some radical changes in issues regarding marriage were a priority and some sort of a crucial demand for these men. This “male feminism” can be interpreted as an influence of the new western libertarian thought, or as a general secularisation ideology, or as the influence of the emerging Turkish nationalist ideas, but it should not be overemphasized.2 This criticism of the traditional marriage was a very common theme in this “male feminism” line. ¶inasi wrote a play, “The Marriage of a Poet” (¶air Evlenmesi), that satirized the classical Ottoman marriage, and Tevfik Fikret, after the tragic death of his sister, wrote a poem on obligatory marriages that made the Ottoman people unhappy. In my opinion, the criticism of marriage adjustments and the status quo for women reveal both the potentialities and the handicaps of this “male feminism.” Women’s liberation was not a goal in itself; the solution of the “women question” was to modernise and to progress the Ottoman society. This perspective is quite coherent with the young Turkish Republic’s modernist elite. The Kemalist elite needed women’s mobilization in many aspects: a new nation state was building and every faithful nationalist, including women, was welcomed. Nilüfer Göle claims that specifically the

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role of women in Kemalist policies, like the making of modernity in early Republican China, is a point of differentiation between western modernity and non-western modernities.3 Unlike the West, which formed its public sphere first as a bourgeois sphere excluding the working classes and women,4 “in Muslim contexts of modernity, women were the markers of public space.”5 Characterising this phenomenon as “extra-modernity,” Göle argues that, [M]ore than the construction of citizenship and human rights, it was the construction of women as public citizens and women’s rights which made up the backbone of Turkish modernism. The taking off of the veil, the establishment of compulsory co-education for girls and boys, civil rights for women (such as electoral eligibility and voting), and lastly the abolishment of “Sharia,” the Islamic law, and the adoption of the Swiss Civil Code (1926) guaranteed the public visibility and citizenship of women. In other words, women’s corporal, social and political visibility define the public sphere. The grammar of Turkish modernisation can best be grasped by the equation established between national progress and women’s emancipation. In a Muslim context, women’s visibility and the social mixing of men and women would endorse the existence of a public sphere.6 The ruling elite of the early republican era used a rhetoric of equality and liberty for women. The fight against the ancien regime thus included the area of women’s rights. The status of women was a question of prestige for the new ruling elite. For the Turkish Kemalist Revolution in 1923, the central agents of modernism were women. Every revolution redefines the attributes of an “ideal man,” yet the Kemalist revolution celebrates an “ideal woman.” However, just like their Ottoman ancestors, women’s emancipation was not a goal for the nationalist ruling elite. It was a means and a sign of modernity and national development, and, also, the constructed “womanhood” in the Kemalist sense was indeed an asexual/sterile one. Within the emerging Kemalist paradigm, women were to be bearers of Westernisation, carriers of secularism and actresses in the public realm, and would therefore incite a shift of civilisation. Ay·e Kadoylu qualifies this phenomenon of early 20th century Turkey of women having modern costumes and dominantly Western behaviour, but with traditional role selfperceptions especially in relations with men and in inter-family encounters, as “simulation of modernity.”7 Indeed, women were the icons of both modernism and indigenous Turkish culture, so the borderlines of this image were clearly blurred: honourable teachers of the Turkish nation without any obvious sign of sexuality. The ideal type of woman for the nationalist ruling

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elite was clearly explained in the very popular novel of the early republican era: Çalku·u (gold crest kinglet/the nickname of the heroine) written by Re·at Nuri Güntekin. In this novel the author tells the story of a young woman who is deeply in love with her cousin. When she is informed about her cousin’s “betrayal” just before their wedding, she leaves her house and becomes a teacher in the lost and undeveloped villages of Anatolia. Some years later, after some complicated adventures, she comes back home to Istanbul, still a virgin, and marries her cousin, still the love of her life. The story is quite explanatory in various aspects: she is a high school teacher (a nationalist metaphor teaching tomorrow’s adults); she is a devoted monogamist who keeps on being in love with “the right man”; and she can easily conceal her sexuality when it is necessary. This asexual image of women was a crucial myth of Turkish official nationalism. A good Turkish woman should never forget that she was in the service of her nation first of all, as the teacher/virtuous role model of the nation. It is true that the young Turkish Republic mobilized a great number of women for the service of modernisation process, but their discourses stayed similar to the determinant approach of the state strata. The perception of an independent women’s liberation movement and the definition of a feminine sexuality have been problematic domains of the ruling elite up to the present day. 2.

Article 438 of the Turkish Penal Code of 1926 The Swiss Civil Code was the first set of norms to be adopted by the new Turkish Republic (17 February 1926). Adopting a western set of legal provisions reflecting a different way of regulating family affairs, heritage and ownership conditions, the founding elite of the Turkish Republic explicitly expressed their intention not only to alter the public institutions but to transform the private sphere as well. After the reception of the Civil Code and Code of Contracts, other major codes were translated from various Western sources and put into power. The French Penal Code of 1810 was already in force since the late 19th century. However, the new Republican decision-making elite preferred the Italian Penal Code of 1889 (Codice Zanardelli) for reception. The main consideration for the new preference was announced by Mahmut Esat Bey, the Minister of Justice, to be the need for a new penal system for a new republic. The French code was qualified for regulating a royal and absolutist system, whereas the new Republic was said to be a most populist and secular regime.8 The Turkish Penal Code was adopted as a whole on March 1, 1926, and went into force on July 1, 1926. The Italian Penal Code was amended on October 19, 1930, and the Turkish Penal Code was amended as well on June 11, 1936 in accordance with the new legislation (Codice Rocco). Nevertheless, the eighth section of the Code regulating “crimes against public manners and family establishment” remained the same. Rape, kidnapping for carnal abuse, deception for prostitution, and adultery were

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crimes regulated in this section. Article 438 provided a statutory basis for punishing the crime to a lesser extent: For acts of rape and kidnapping done to a woman who adopts prostitution as a profession, punishment is reduced in a 2/3 ratio to the punishments determined in the related provisions. This provision was an inconsistent regulation even in its existing general legal system. Primarily, prostitution was a profession acknowledged by the legal system. The major legislation concerning prostitutes was the General Hygiene Act of 1930, and due to maintenance of hygiene it was required in the Act to issue an administrative regulation. Thus article 15 of this specific regulation provided a definition for prostitution as a profession: “women satisfying professionally the sexual needs of others for a benefit are prostitutes,” and in order to perform their profession these women had to have work permits. Moreover, an amendment to the Social Security Act provided a professional disease pension, health pension, motherhood pension, old-age pension and death pension to women performing prostitution with work permits. In comparative law, crimes of rape and kidnapping for carnal abuse are regulated in one of four ways: i.

ii.

iii.

iv.

systems that do not have any consideration for the style of life that the victim conducts. Thus no punishment of a lesser degree is valid here. Almost all contemporary laws have such regulations; systems that do not consider the act of rape a crime if the victim is a prostitute. This used to be an ancient regulation. Under the Germanic legal system of the 19th century, only if the victim happened to be a virtuous woman was the act considered a crime; systems making differentiations between a woman who happens to be a prostitute and one who is not. Accordingly punishment gets lessened absolutely (Italian Penal Code 350); systems that give the discretion to the judge for lessening the punishment to a certain degree (1975 Federal German Penal Act, article 177/11).

Article 438 of Turkish Penal Code was applied to several cases over many years. In 1988 the issue was taken to the Constitutional Court. On 12 January 1989, the Court examined the case and verified that the provision

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was constitutional by a vote of 7 to 4. The decision was published in the Official Gazette, and it became controversial. Various women’s organisations and political parties reacted against the decision, and it received extensive coverage in the media, mostly by being criticised but also sometimes praised.9 In the majority opinion, it was claimed that if a virtuous woman is the victim of rape or kidnapping for carnal abuse, the damage to her honour and her respectability in the society and in the environment in which she lives is greater than the damage to a woman who performs prostitution as a profession. It was thus asserted by the majority vote that the provision was consistent with the principles of equality before law (article 10), nature of fundamental rights and freedoms (article 12/1), personal inviolability, material and spiritual entity of the individual (article 17/1), and personal liberty and security (article 19/1). In 1990, the feminist campaign against article 438 took place spontaneously in the enthusiastic atmosphere of the movement’s “golden times.” On January 23, 1990, a group of women went to the famous street of brothels in Istanbul to protest the Penal Code. Their major slogan was, “neither virtuous nor non-virtuous, we’re just women.” Feminists were particularly underlining the parallels between two official documents: the marriage certificate and the work permit to perform prostitution. There was quite a consensus among feminist groups to resist the concept that “nonvirtuous women deserve to get raped.” The only point of dissension was about the representations of the prostitutes. Some feminists argued that in demonstrations it was the feminists who talked in the name of the prostitutes and asserted that this was wrong. According to these feminists, power was exercised when some women talked and acted in the name of the other women. The issue for them was to question the fact of “acting in the name and for the rights of the other.” However the majority of the Turkish feminists thought that it was legitimate to make demonstrations against article 438. A second demonstration was held on 18 February 1990, and more than 2000 women protested against article 438. Women were once again claiming that the “virtuous and non-virtuous” differentiation among women was completely unjustifiable and that every crime of rape was equally illegal. This demonstration, named “all women against article 438,” received wide coverage in the mass media. The women’s liberation movement hence was able to shape public opinion against the Provision. Even women who were not as politicized and mobilized as the militant women of the women’s liberation movement supported this demonstration and the feminist reaction against this sexist clause. Finally on 21 November 1990, article 438 was abolished by the Grand National Assembly. This was the first legal achievement of the feminist movement after the 1980’s in Turkey.

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The Women’s Liberation Movement in Turkey Despite the famous myth, which asserted that it was the modernisation process and especially the Turkish Republic that gave rights to women, there had always been an indigenous women’s liberation movement to some extent. Women’s studies of the last decade reveal that there existed a feminist Ottoman women’s movement by the fin de siecle. The women’s magazines of the period give some clues to understanding the ideology, politics and dimensions of this movement. The first magazine for women, Terakki-i Muhadderat (intellectual progress) was published in 1869. Even before 1908 when a new Constitution went into effect, there were many women’s magazines such as ¶ukufezar, Mürüvvet and Hanmlara Mahsus Gazete (newspaper for women). These magazines emphasized the importance of education for women, and there was an implicit stress on equality between men and women. It would be unfair to argue that these magazines were only proposing the traditional gender roles to women. Women authors of these periodicals were not only advocates of being good wives and good mothers but also were questioning their positions by comparing themselves with men. After the Constitution of 1908, the number of women’s magazines increased. New magazines such as Mehasin, Demet, Kadn (Woman), Kadnlar Dünyas (Women’s World) and Seyyale were published in this period. Some associations such as Osmanl Müdafai Hukuku Nisvan Cemiyeti (Ottoman Association to Defend the Rights of Women) emerged in order to fight for the betterment of women’s life conditions. In these magazines and associations the restricted participation of women in political and social life, women’s rights, educational conditions for women, the family structure and traditional marriages in the Ottoman society were severely criticized. In the women’s magazines, women readers were encouraged to write their own experiences, and readers were not indifferent to this invitation. Many Ottoman women shared their ideas, experiences and problems with the editors of these magazines, and the magazines became a platform of communication and solidarity among some Ottoman women. Halide Edip, one of the most interesting figures of the women’s movement, wrote about the history of the Ottoman women’s movement in 1913: A history of Ottoman women’s activities on the path of progress has not been written yet, but that does not necessarily mean that they have done nothing. On the contrary, to have the opportunity of addressing women on such an intimate subject in a large theatre and having such an esteemed mass of an audience composed of women is a source of pride. Today, as I address you, and as you listen to me, without any doubt, we are making history. Whenever our grand-children make this history long enough to form a conference, certainly will be referring to our powerless but good-willed and hard gained struggle.10

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The emergence of the Turkish Republic included a mobilisation of women in order to create the Turkish nationalist project. Women were exalted as the teachers, mothers and cultural icons of the Turkish nation. The widespread opinion about the early republican era is that the new regime granted women their rights even though there existed no grassroots demand for them. However, during that period there existed some associations which actually fought for women’s rights. Türk Kadnlar Birliyi (Turkish Union of Women) was established on 15 February 1924 in order to fight for voting rights and other political rights for women. Their leader Nezihe Muhiddin, who was a faithful feminist, was found too radical by the new regime, and Türk Kadnlar Birliyi in time became more and more docile and harmonious with the official ideology as a consequence of the state’s pressure.11 In 1935, alleging that there was no need any more for such an association since Turkish women were precisely equal with Turkish men, Türk Kadnlar Birliyi, which was still active, was abolished by the State. Thus, this bridge between the women’s movement of the turn of the century and the Republican-era independent grassroots women’s movement was ended. ¶irin Tekeli, a prominent feminist and political science academic, claims that “our mothers’ generation that identified themselves as Kemalists rather than feminists (both by being forced and were to be so by considering the reforms) rejected feminism especially by the opportunity given to them by the Republic in reaching relatively distinquished educational and professional positions.”12 One had to wait until the 80’s for a second wave of a feminist movement in Turkey. During the 60’s and 70’s, “women” was discussed as a question only in Marxist paradigms and in institutions. Such a question was considered as a specific outcome of the capitalistic system. According to this approach, “after the revolution” there would be no exploitation of women, so the solution of the “question” was inherent in the struggle against capitalism. Women who were mobilized and politicized then, in the leftist/socialist movements, were not seeking an independent organized women’s movement. By the mid 80’s, women started to get organized about other exploitations such as domestic violence, sexual abuse, pornography and domestic labour. They organized demonstrations not only against capitalism or state pressure but also against patriarchy as a whole. A great number of women got mobilized and politicized for their feminist demands. During the 80’s and the 90’s a lot of political magazines such as Sosyalist Feminist (socialist feminist), Kaktüs (cactus), Feminist, Pazartesi (monday), were published, and a lively atmosphere for feminist theoretical and political discussions was created. Different voices and various feminist methods started to get expressed for the first time in the Turkish political sphere. In the 1980’s, feminist groups established two important institutions as remedies for violence against women: Mor Çat Kadn Synma Vakf (Purple Shelter Foundation for Women’s Sheltering) in Istanbul and Kadn Dayan·ma Vakf (Foundation for Women’s Solidarity) in Ankara, both providing shelter for

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women who had been victims of domestic and other violences. In May 1987, the first demonstration against domestic violence (Dayaya Kar· Dayan·ma Yürüyü·ü) took place with mass participation from women. After this famous demonstration a lot of feminist women’s groups emerged. Feminist women’s groups did not always have large memberships, but they became a political power that influenced Turkey’s political discussions. There has been a lively atmosphere in which feminists expressed their ideas and political attitudes concerning domestic and sexual violence, women’s labour, incest, the ideology of domesticity, and prostitution. Recently, during the drafting process of a new penal code, feminist groups formed a platform to express their demands such as a non-discriminatory regulation, provisions against domestic violence, marital rape, sexual assault in the work place, so-called “honour killings,” and many others. If a text has been achieved that involves so many provisions reflecting a much better environment for women, the lobbying force of the feminist groups should certainly be appreciated. 4.

Recent Developments in the Turkish Penal Law System Regarding “Rape” and Violence against Women The “new” Turkish Penal Code that was legislated on September 26, 2004 (no. 5237), effective April 1, 2005, regulates rape as one of the crimes under the title “crimes against sexual inviolability,” in contrast to the Turkish Penal Code of 1926, which regulates it as one against the “family order and public morals.” By categorising rape as a crime against the “family order and public morals,” it is the “family order” and “public morals” that get disturbed when a woman gets physically violated. In the Turkish Penal Code of 1926, the word “rape (tecavüz)” is not used; instead there exists “rza geçmek.” “Irz” is a complicated word; it means “chastity/purity/honour,” and comes from a root meaning “consent.” Thus, “rza gçmek” means violation of a woman’s chastity/purity/honour without her consent. In such a context, the woman is considered as an instrument of family honour; her self and body does not exist; she simply gets perceived as a possession/property. A violation against the woman’s “chastity/purity/honour” means dirtying a possession/property that belongs to the family and is “supposed to be” clean/pure. Several implications of such an understanding are reflected in various provisions regarding women and rape in the Turkish Penal Code of 1926. Foremost of all are differentiations such as married woman, virgin, prostitute, etc. Two provisions should particularly be mentioned in this context: Articles 434 and 51. Article 434 provides, [S]hould one who rapes a woman marry her, his conviction gets suspended. In case that a divorce resulting from the convict’s wrong-doing takes place within five years after the date of marriage, his conviction gets executed.

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Such a regulation means that the victim is forced to marry her violator, and it clearly expresses the decision-making elite’s perception of women. A judicial praxis that reveals such a view gets reflected through article 51. Article 51 is a general provision that regulates “extenuating circumstances.” It is commonly invoked, however, for so-called “honour killings,” and it allows murderers to plead family honour as an extenuating circumstance to justify their killings – with the result that females fall victim to customs dating back generations. “Dishonouring” relatives by being raped is one of the most common cases in which brothers or cousins of a victim are called upon by a family council to conduct murder, often in broad daylight as an admonition. Perpetrators are often punished leniently after invoking article 51. In a report on violence against women in Turkey, Amnesty International highlighted the case of a man whose 24-year prison term for stabbing his partner to death was reduced to two and a half years after he produced photographs of the woman with another man.13 In the new Turkish Penal Code, no. 5237, it appears that several objections made against the prior regulation resulted in significant changes. Mandatory life sentences are required in article 82/j for those who carry out “honour killings.” Rape is regulated as one of the crimes under the title “crimes against sexual inviolability” without mentioning the gender of the victim. Article 102 provides that, (1) Anyone who violates another one’s bodily inviolability by sexual conduct, upon a complaint by the victim, will be punished from two years to seven years by imprisonment. (2) If the action takes place by entering an organ or device into the body, the punishment of imprisonment will range from seven to twelve years. If the action is against the spouse, judicial procedure is run upon a complaint by the victim. (3) If the crime is commited (a) against one who may not protect herself/himself bodily or psychologically, (b) by using power of public authority or an authority arising in working relations, (c) against one who is tied in blood and relative relationship to the third degree (third degree included), (d) by gun or by more than one person, punishments are doubled. (4) If force was used in commiting the crime beyond being a means of breaking her/his resistance, one also gets punished for intentional battery.

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(5) If as a consequence of the crime, the victim loses her/his bodily or psychological health, the punishment of imprisonment will be not less than ten years. (6) If as a consequence of the crime, the victim goes into a vegetative state or dies, the punishment is a mandatory life sentence. Article 105/2 regulates sexual assault in the workplace and provides a punishment of six months to four years, upon a complaint by the victim. Although the application of a law is as important as its text, it remains the case that in a country where the following figures prevail, a regulation with an obviously different approach looks promising. Figures gathered by comparing the data obtained in surveys made by two institutions for women, Kadnn Statüsü ve Sorunlar Genel Müdürlüyü (Directorate for Woman’s Status and Women’s Problems), a governmental agency, and Kadnn Sosyal Hayatn Ara·trma ve †nceleme Derneyi (Association for Research on Social Life of Women), a non-governmental organisation, reveal that with 58% of women as victims of violence, Turkey holds a terrible record. The overwhelming ratio of violence against women is domestic; most of the women who are victims of violence are beaten and/or killed by their husbands, fathers and brothers. Among the violence cases, 79% of women consider the violence they have been exposed to as physical violence, 52% as verbal violence, and 29% as emotional violence. 45% of men in Turkey believe that they have the “right to beat” their wives if those women fail to obey them, and 23% of men “rape” their wives. 80% of men consider activities as cooking, cleaning, and taking care of children to be “duties of a wife,” whereas 20% of men say that they “actually hold such activities.” To conclude, the devil comes in all shapes and sizes. In the case I have exemplified here, it came from patriarchal (needless to say, patriarchy can also be exercised by women) decision-making and adjudicating elites of the Turkish Republic. The consequence of this procedure was to victimise a woman legally, who had already been victimised through rape. This is not adding insult to injury, but rather adding injury to injury.

Notes 1. Kadoylu, 1999, 120. 2. Kandiyoti, 174. 3. Göle, 1977, 61-81. 4. See Habermas. 5. Göle, 1977, 61-81. 6. Göle, 2000, 51. 7. Kadoylu, 1994, 652. 8. Bozkurt, 199-200.

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The Case of Rape and Prostitution in Turkey 9. For criticism, see Cumhuriyet, 11 January 1990; 12 January 1990; 16 January 1990; 19 January 1990; Milliyet, 12 January 1990; Tercüman, 13 January 1990; Güne·, 16 January 1990. For praise, see Türkiye, 13 January 1990. 10. Çakr, 10. 11. Zihnioylu, 7. 12. Tekeli, 31. 13. Turkey: Women Confronting Family Violence, AI Index: EUR 44/013/2004, 2 June 2004. http://web.amnesty.org/library/index/ engeur440132004.

Bibliography Bozkurt, Gülnihal. Bat Hukukunun Türkiye’de Benimsenmesi (Reception of Western Laws in Turkey). Ankara: Türk Tarih Kurumu, 1996. Çakr, Serpil. Osmanl Kadn Hareketi (Ottoman Women’s Movement). Istanbul: Metis, 1996. Göle, Nilüfer. “Gendered Nature of the Public Sphere.” Public Culture 10/1 (Fall 1977): 61-81. _______. “Global Expectations, Local Experiences: Non-Western Modernities.” In Through a Glass, Darkly: Blurred images of cultural tradition and modernity over distance and time, edited by Wil Arts, 51. Leiden: Brill, 2000. Habermas, Jurgen. The Structural Transformation of the Public Sphere, translated by Thomas Burger with Frederick Lawrence. Cambridge: Polity Press, 1989. Kadoylu, Ay·e. Cumhuriyet †radesi Demokrasi Muhakemesi (Will of the Republic Judgement of the Democracy). †stanbul: Metis, 1999. _______. “Women’s Subordination in Turkey: Is Islam Really the Villain?” Middle East Journal 48/4 (1994): 652. Kandiyoti, Deniz. Cariyeler, Baclar, Yurtta·lar (Concubines, Sisters, Citizens). †stanbul: Metis, 1997. Tekeli, ¶irin. “1980’ler Türkiyesinde Kadnlar” (Women in Turkey of 1980’s). In Kadn Bak· Açsndan 1980’ler Türkiye’sinde Kadn (Women in Turkey of 1980’s by the Women’s Perspective), edited by ¶irin Tekeli, 31. Istanbul: †leti·im, 1995. Zihnioylu, Yaprak. “Bir Osmanl Türk Kadn Haklar Savunucusu: Nezihe Muhiddin” (An Ottoman-Turkish Women’s Rights Advocate: Nezihe Muhiddin). Tarih ve Toplum 183 (March 1999): 7.

Chapter 6 Exception as the Norm and the Fiction of Sovereignty: The Lack of the Right to Health Care in the Occupied Territories Dani Filc and Hadas Ziv Since the beginning of the Second Intifadah in October 2000, access to health care services became very difficult for the Palestinians living in the Occupied Territories. Their situation got even worse when, in April 2002, Israel returned to a full and direct occupation of the territories that, as a result of the Oslo agreements, were under Palestinian control. While the Palestinian Authority still enjoys formal control over those areas, de facto Israel has total power over most of the Occupied Territories, severely controlling Palestinian’s property, movement and lives. Israel exercises its power through road-blocks, the wall/fence and the Israel Defense Force’s (IDF) constant presence, strictly limiting Palestinian’s access to health care services. Moreover, the Palestinian Authority meets insurmountable difficulties in managing everyday activities related to health, such as garbage disposal, the performing of sanitary actions and providing basic provisions for health care facilities. The Israeli administration claims that responsibility for Palestinians’ health status and access to health care services belongs to the Palestinian Authority. Israel argues that the Oslo agreements transferred to the latter the responsibility for services such as health care and education, even if the reoccupation of the Territories puts an end to any possibility of the Palestinian Authority to actually fulfill this role. In the present article we propose to build on Carl Schmitt’s and Giorgio Agamben’s concepts of sovereignty and exception in order to show how Israel’s re-invasion of the West Bank and the Gaza strip produces evil as a situation of constant exception and fictitious sovereignty. While Israel becomes the de facto sovereign power, a fictitious Palestinian sovereignty is constructed in order to free Israel from any concrete responsibility for Palestinians’ health status. In the first section we will discuss the concepts “sovereignty” and “exception” which will provide the theoretical basis for our analysis. The second section will present the problem or Palestinians’ lack of access to health care services. The third section will argue that the Occupied Territories represent a case where the state of exception becomes the rule. We will claim also that the appeal to the Palestinian Authority’s fictitious sovereignty consolidates the state of emergency. Finally, in the conclusions, we will point to the possibility of further developing the concepts of sovereignty and exception in order to better understand situations as the one reigning in the Occupied Territories.

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Sovereignty and the State of Exception The importance of the state of exception and its relationship with the idea of sovereignty was first posited by Carl Schmitt in his book “Political theology,” where he proposed that “[S]overeign is he who decides on the exception.”1 For Schmitt, the authority to decide on the exception is sovereignty’s main mark, “the authority to suspend valid law. . . is so much the actual mark of sovereignty.”2 The decision whether the state of exception should be applied cannot be rationally derived from a set of rules or norms. The state of exception cannot be deduced from the norms since the exception is the state in which all norms are suspended and the installment of a state where exceptional measures can and should be taken. In Schmitt’s view, only the sovereign may decide on these questions, and this capacity is what defines him as sovereign. The sovereign is the entity who determines “what constitutes public order and security” and “when they are disturbed.”3 In the state of exception the sovereign enjoys unlimited authority. The constitutional order is suspended, and while law recedes, the state, the sovereign, remains.4 The state of exception as the suspension of the state of law is valid, however, insofar as it leads once again to the state of law. The need to suspend the valid law is exceptional, and it is justified only as a way to protect the state from its enemies and as the only mean which will allow the restoring of the state of law. For Schmitt “sovereignty is always established upon a border and is primarily exercised in the imposition of borders.”5 The occupation of land and the demarcation of borders are the original juridical acts, the border draws the limits of the space where law is suspended, the locus of the exception.6 The Italian philosopher Giorgio Agamben builds on Schmitt’s concepts of sovereignty and exception, while ascribing them a different meaning. The sovereign, by installing the state of exception, produces bare life; i.e. life exposed to death. The inclusion of bare life into the polis, in the figure of homo sacer, is at the basis of the Western state and politics and at the basis of the idea of sovereignty. In Agamben’s words “the production of a biopolitical body is the original activity of sovereign power.”7 This inclusion, however, is an “excluding” inclusion. Bare life is included in the political by its exclusion from the juridical order, by its constitution as homo sacer. The sacred man is the one “situated at the intersection of a capacity to be killed and yet not sacrificed, outside both human and divine law.”8 The homo sacer is included in the community as the excluded one, as he who may be killed and his/her killing will not be considered a murder. S/he is included within the law as s/he who is excluded from the protection of the law.9 For Agamben, this is the meaning of sovereignty, “the originary structure in which law refers to life and includes it in itself by suspending it.”10 Since the sovereign is the entity which includes life within the law by the suspension of life, Agamben can state that “the sovereign is the point of indistinction between violence and law, the threshold on which violence passes over into law and law passes over into violence.”11

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This form of relation which defines sovereignty, a relation in which something is included solely through its exclusion, is what Agamben understands as the state of exception.12 Agamben follows Schmitt in linking between sovereignty, the demarcation of a territory and the state of exception. The state of exception is the foundation of Western polities;13 “in its archetypical form, the state of exception is . . . the principle of every juridical localization, since only the state of exception opens the space in which the determination of a certain juridical order and a particular territory first becomes possible.”14 In the state of law, the valid norm, the law, enjoys also the force of law. In the state of exception a separation is introduced between those two elements. The valid norm has no force and decisions which are not legal do have the force of law. The state of exception represents “the isolation of the force of law from the law itself. The state of emergency defines a regime of the law within which the norm is valid but cannot be applied (since it has no force), and where acts that do not have the value of law acquire the force of law.”15 The state of exception is not a dictatorship but a space devoid of law, characterized by the existence of the force of law without a valid law. The state of exception is a “zone of anomy in which all legal determinations find themselves inactivated.” In Agamben’s view, this space devoid of law is essential to the legal order itself. The law, in order to guarantee its functioning, necessarily has to relate to an anomy. In sum, the anomy is not a transient interruption of the state of law but is always included in the latter, which must constantly refer to the former as a condition of its functioning. Agamben does not consider the state of exception as a temporal suspension of the rule in order to ensure the viability of the state of law. He follows Benjamin’s claim in the theses on history, where Benjamin argued that if we look at history from the point of view of the oppressed we can see that “the ‘state of emergency’ in which we live is not the exception but the rule.”16 However, while Benjamin considers that the state of exception is the rule only for the oppressed, Agamben sees it as the fundamental characteristic of modern states. Agamben claims that in Western societies, where the limits between the state of emergency and the state of law are blurred, the former becomes permanent. In different politico-juridical contexts the sovereign makes the state of exception permanent by declaring a “fictitious” state of emergency. Agamben states that “at least since Napoleon’s decree of December 24, 1811, French doctrine has opposed a ‘fictitious or political’ state of siege in contradistinction to a military state of siege. In this context, English jurisprudence speaks of a ‘fancied emergency’; Nazi legal theorists spoke unconditionally of an ‘intentional state of emergency’ in order to install the National Socialist State.” He considers the intentional creation of a permanent state of emergency “one of the most important measures of contemporary states, democracies included.”17 Thus, in our days, the state of exception is not, as Schmitt thought, a sovereign’s decision limited in time, aimed to defend the state from its

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enemies and allow the return to the state of law. The state of exception is not a transient condition “whose aim it is to make the norm applicable by a temporary suspension of its exercise,” but a permanent situation where the sovereign may suspend the law in such a way that “it is impossible to distinguish transgression of the law from execution of the law, such that what violates a rule and what conforms to it coincide without any remainder.”18 In this state of indistinction between violence and the law it is the sovereign who has the power to decide between the two “to the very degree that he renders them indistinguishable from each other.”19 When the state of exception is not more a transient situation and the clear distinction between the state of law and the state of exception disappears, we are left with “a zone of anomy dominated by pure violence with no legal cover.”20 All men and women become, potentially, homines sacri. In certain contexts, such as in the Occupied Territories, people become de facto, and non potentially, homines sacri. For them the law exists only as they are excluded from it, and “the political system transforms into an apparatus of death.”21 2.

The Occupied Territories: The State of Exception as the Limit of Palestinian Access to Health Care Since the beginning of the occupation in 1967, and until 1993, Israel was in charge of the health care system in the Occupied Territories. The Oslo agreements transferred the responsibility for several services, health care among them, to the Palestinian Authority.22 The first steps of the Oslo agreements also left in their place all Israeli settlements in the Occupied Territories. Thus several blockades and controls were established in order to protect the Jewish settlements. With the beginning of the second Intifadah in September 2000, Israel erected new checkpoints and barriers within the West Bank and the Gaza Strip. These checkpoints divide each area into several “geographical cells.” The West Bank is dissected into northern and southern blocs (with Jerusalem and its environs in between), and is additionally divided into regions according to city-governorates: Jenin, Nablus, Ramallah, Salfeet, Jericho, Tul Karm, Qalqilya, Bethlehem and Hebron. Each region is in turn divided into sub-regions, which may at times constitute a single village, isolated from all other villages and towns in its vicinity.23 By the end of 2003 there were fifty-six manned checkpoints in the West Bank, as well as 607 physical roadblocks that prevent the passage of motor vehicles – 457 dirt piles, 94 concrete blocks, and 56 trenches.24 Moreover, most of the main roads in the West Bank are closed for Palestinians. At times, the internal closure has been accompanied by siege (known by the euphemism “encirclement”). Israel has “encircled” districts and individual villages, cutting them off from the remaining parts of the West Bank. The Gaza Strip, for its part, is dissected by the Gush Kattif checkpoint into two blocs: the southern bloc, including Rafah and Khan Younis – which in turn includes the completely isolated Mawasi area – and the northern bloc, which includes Deir Al-Balah, Gaza and Jabalia.25

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In addition, Israel is in the process of constructing a complex of fences and barriers, known in Israel as “the separation fence” and in the Occupied Territories as “the wall.” This system is located east of the 1967 borders and within the Occupied Territories. The declared objective of this complex is to constitute a physical obstacle preventing entry of Palestinians into Israel. However, the route of the fence, determined with a view to including as many settlements as possible on its western side, forms isolated Palestinian enclaves within the West Bank. For example, the city of Qalqilya is completely surrounded by a wall, with only one gate in the northeast. Passage via this gate is also controlled by the Israeli military. In the area of Baqa a-Sharqiya and Nazlat Issa two parallel fences have been erected.26 The development of settlements and the physical division of the West Bank and the Gaza strip by internal borders show that Israel is the de facto sovereign in the Occupied Territories. As a consequence of the internal division of the Occupied Territories, a complicated system of permits and authorizations was established, in order to pass the blockades, travel from one territorial cell to another, or enter Israel from the West Bank or the Gaza strip. Palestinians’ daily lives are bureaucratically managed by an apparatus whose only aim is control. The first step to achieve a permit is to get a magnetic card, which makes it possible to obtain a transit permit. The multiplication of internal checkpoints, which require transit permits during blockade, has turned the magnetic card into a life-saving card. Getting one is dependent on the absence of a “prohibition on security or police grounds.” Palestinians are subjected to double jeopardy, since the fact that someone in the family has been killed by the IDF makes all the family a security threat, as it is “more likely that they will be involved in a terrorist attack.”27 The case of Muhammad Tabazeh tragically exemplifies this. On 20.10.03 the Israeli air force directed two rockets, within a minute and a half, on a car whose passengers were suspected of being Hamas activists in the Nusseirat refugee camp in the Gaza Strip. Many residents who arrived there after the first rocket were hit by the second, including Mahmoud Tabazeh, a 14 year old boy. Because of his serious condition, he was transferred for treatment to Tel HaShomer hospital. His brother Abed, aged 23, a student of economics and statistics, was killed, as was his cousin Ibrahim, a schoolboy in the 12th grade. Other members of the family were also injured. His father Muhammad had a permit to work in Israel. But when he tried to go and visit his son in the hospital, the soldiers at the Erez checkpoint (the main gate to and from the Gaza Strip) confiscated his permit. When he asked why, he was told “it is because of your children, because of what happened to your family.” From the moment his sons became victims of the IDF, the father was prohibited on security grounds: not only could he not visit his son, but he also stood to lose his job. Because of the refusal to allow his father to enter Israel, his son Mahmoud had to undergo an extremely serious and complicated operation without a single member of his family at his bedside.28

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The classification of “security risk” can prevent anyone from receiving a permit, even if s/he is seriously ill.29 The prohibition on security grounds is a highly arbitrary one. The fact that different authorities may arrive to contradictory decisions about the same person, and the fact that the intervention of human right organizations has succeeded in modifying the decisions concerning specific cases, show that there are not “objective” security reasons for the denial of permits. The denial of freedom of movement severely affects the access to health care services and causes significant damages, even leading to deaths that could have been avoided. The system of blockades and permits does not only impede patients’ access to health care facilities, but also makes it very difficult for the health care staff to reach their workplace or their patients’ homes. Since Israel’s control of movement is pervasive, health care issues such as the importing of medicines and medical equipment donated or purchased abroad, and the decision to which medical center patients can be referred, are submitted to the Israeli security forces’ will.30 The internal partition of the West Bank and the Gaza strip and the establishment of internal borders are not the sole manifestation of Israel’s de facto sovereignty. Israel’s sovereignty is expressed also in its capacity to decide about the emergency. For almost four years the Occupied Territories have been under a state of emergency, where the rule of law has been suspended and the state of exception became the rule. The fact that the Supreme Court rejected almost all the petitions concerning Palestinians’ freedom of movement or the IDF actions in the West Bank and Gaza strip symbolizes that the Occupied Territories are a space where law has been suspended. Many of the petitions were rejected by the High Court on procedural grounds, without discussing the substance of the claims. Sometimes petitions were rejected under the claim that they were too general, even when the petitions detailed particular cases.31 In other occasions the Court considered itself unable to address policies taken for security reasons, or it accepted the IDF explanations. The de facto suspension of the state of law was reflected also in cases where the Attorney General dismissed petitions claiming that the complaint was “too unspecific.”32 Furthermore, when there is agreement that in certain cases the law or the norms were violated, action is rarely taken against those who violate the procedures.33 Even in those cases where the Court did express its concern about violations of international law and the government accepted the Court’s indications, human rights organizations’ research showed that the government violated its own undertaking to the Supreme Court. The security forces, for their part, clearly consider the Occupied Territories as a space devoid of law. In its answer to the Supreme Court, following a petition by four human rights organizations against the IDF commander in the Gaza strip, the respondent argued that “in this situation [where fighting is taking place], a great caution should be taken in applying the judiciary critic on the security forces’ actions. We are talking about actions that are at the limits of the judiciary audit.”34

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When confronting demonstrated violations of Palestinians’ rights, the government and the security forces claim that the violations of rights, rules and laws are “exceptions.” However, as put by a report of Physicians for Human Rights, “the actual situation in the field proves that it is the ‘exceptions’ that are the true policy.”35 The state of exception is precisely that state where “exceptions” become policy, become the rule, and where the norm becomes the exception. Every action which would be considered normal under the state of law becomes an exception under the state of emergency. Living within restricted “geographical cells” becomes the rule, while “normal,” free movement outside these “cells” becomes an exception requiring special permission. The mere will to stay by a hospitalized child’s bed becomes an ordeal, and the authorization is granted only as an “exception,” as exemplified by the case of the Haruf family. Abed Haruf, a one-year-old baby, the son of Saed Haruf from the village of Odelia in the Nablus district, was hospitalized in Nablus for 5 days while suffering from anemia. The father wanted to visit his baby son and tried to reach Nablus, which is situated 7 Km away from his village. Due to the closure he was obliged to pass via Hawara checkpoint (south of Nablus) on his way. He was not allowed to cross into Nablus since he had no permit. He applied to the Israeli DCO at Hawara for a permit, and was refused. Mr. Haruf was officially denied passage within the West Bank, due to “security reasons.”36 After the intervention of PHR and a Parliament member, Mr. Haruf was allowed, as “an exception,” to stay at his son’s bedside. In its answer to PHR-Israel concerning the denial of movement to medical teams and sick people in the Nablus area, the Ministry of Defense stated that “uncoordinated and spontaneous” movement will be allowed – if it is allowed – only in “emergency cases.”37 Thus, even for medical teams freedom of movement exists only as an exception. The “Procedure for the Handling of Residents of Judea and Samaria who Arrive at a Checkpoint in an Emergency Medical Situation,” makes the IDF policy concerning Palestinians’ access to emergency care explicit. The second article states: As a rule, the checkpoint commander will allow a person to cross the checkpoint (including to enter into Israel) to obtain medical treatment, even if the individual does not have the requisite approval, if an urgent medical emergency is involved. An example of a case of urgent medical emergency is a woman about to give birth, a person suffering from massive bleeding, or a person with a serious burn injury arrives at the checkpoint.38 However, in all non-urgent cases the “resident” must obtain the approval of the local DCO (District Coordination Office) before they reach the checkpoint. Free access to health care services, which should be the norm, is possible only as an exception, in an emergency.

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Under the state of exception all Palestinians become homines sacri, whose life is reduced to bare life and its taking is not a crime. This is made clear not only by the great number of civil casualties, but also by the management of Palestinians’ health. The IDF openly assumes that its aim is providing for Palestinians only as bare lives. In a response to Physicians for Human Rights-Israel, the Ministry of Defense stated, “[T]he civil administration offices in Judea and Samaria operate daily in an intensive way in order to allow Palestinian populations that are not involved in terrorism to conduct a basic life pattern.”39 The transformation of Palestinians into homines sacri is clearly exemplified by their lack of access to health care services. The blocks and check-posts make access to health care services, even in emergencies, extremely difficult. Figures from the Palestinian Red Crescent show that ambulances are able to reach their destination only in thirty percent of the cases. Before the second Intifadah broke out, in late September 2000, ninetyfive percent of Palestinian women in the West Bank gave birth in hospital. By September 2002, that figure was less than fifty percent.40 Testimonies given to human right organizations indicate that in many cases, soldiers delay ambulances even in cases of “urgent medical emergencies,” do not consult with medical officials, and do not give sick people the benefit of the doubt, as they should have according the army’s own written procedures. Moreover, in 2003 the roads in the Nablus area were completely closed at least three times even for ambulances, which were not allowed to enter the city.41 The establishment of unmanned blockades such as soil ramps or concrete blocks physically prevents sick people unable to cross these obstacles from reaching the staffed checkpoints, and through these, perhaps, gaining access to the medical centers. But manned check-posts do not prevent the loss of Palestinian lives. On November 14, 2000, Jimal Ibrahim Balawal, a resident of the village of Sinjil near Ramallah, suffered a heart attack. An ambulance that was supposed to take him to hospital in Ramallah was delayed by IDF soldiers when attempting to leave the village. After waiting approximately thirty minutes, during which time the soldiers refused to respond to the pleas of the nurses accompanying the patient, the ambulance was forced to turn back. The patient later died in the medical center in the village, which naturally lacked the equipment and medical expertise that could have saved his life.42 In the village of Azmut, unmanned blockades make it impossible for ambulances to enter the villages. Patients must walk on foot to the ambulance, which waits on the road. Sometimes, however, the ambulance is unable to reach the road, since it must pass through at least two staffed checkpoints along the way. The local physician reported two cases of patients who died due to delays in evacuation. The village pharmacist suffered a cardiac incident and was taken on foot toward the road where an ambulance was waiting; he died on the way. In the second case a woman in labor attempted to walk from Azmut toward the road, but her passage was

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blocked by soldiers. She gave birth in the open and her child died shortly after.43 The obstacles for the access to health care result not only from the limitation of the patients’ movements, but also from limitations to the medical staff’s movements. In one of the absurd cases in which the Occupation bureaucracy is so fertile, a West Bank doctor who works at a hospital in East Jerusalem and possesses a permit for entry into Israel for this purpose was requested to provide expert advice at a hospital in the city of Nablus in the West Bank. When he reached Hawarra checkpoint at the southern outskirts of Nablus he was told that the permit he holds is only valid for entry into Jerusalem. The Civil Administration claimed that he should have applied for a “blockade permit” to enter Nablus. All claims to the effect that if he was found eligible for entry into Israel there was no logic in denying his entry into Nablus were in vain, and the doctor was obliged to return.44 The conversion of the Palestinians into homines sacri is reflected also in the attitudes of Israeli soldiers and authorities. In many occasions soldiers relate to Palestinians as expendable lives. When asked by PHR staff members why drivers were waiting under the sun, the check-post, commander said that the soldiers would “leave them there. . . Let them dehydrate [lit. ‘dry up’ – PHR], let them die.”45 In other occasion an ambulance carrying a woman suffering from a hemorrhage and her husband, a one-month-old baby with a heart defect and a man scheduled for heart catheterization made its way to hospitals in Nablus. It was denied passage via Sal’ous checkpoint and when the ambulance driver insisted upon entering the city with the three patients the soldiers at the checkpoint threatened to shoot the vehicle’s tires. In yet another case, a Palestinian ambulance driver testified that when arriving at the check-post he told the soldier that he needed to get to Husan to take a patient to hospital; “the soldier shouted . . . that the patient didn’t interest him and neither did the work of the ambulance.”46 The very fact that the decision whether a medical condition is urgent enough in order to pass the check-post without previous coordination is taken by a soldier lacking any medical training, reflects the approach to Palestinians as expendable lives. Not only young, plain soldiers, express their disregard for Palestinian as human beings, whose life should not be spared. The health coordinator for the civil administration in the West Bank, when addressing the problem of women giving birth at the check-posts, claimed “The myth of the woman giving birth at the checkpoint is not always correct. The problem is that Palestinian women come to hospital at the last minute – not like us, where the woman rushes off to hospital every time she has a contraction. At Hadassah [Hospital], they often give birth in the emergency room.”47 In the IDF commander in the Gaza Strip’s answer to the aforementioned petition to the Supreme Court, the respondent pointed to the low credibility of a petition based on Palestinian reports. The argument shows that for the IDF, Palestinians are not wholly judicial persons, i.e. they do not enjoy fully personhood within the framework of the law.48

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The examples and quotes analyzed so far illustrate the fact that in the Occupied Territories the state of exception became the norm, and the Palestinians became homines sacri. The Israeli rule is based on the blurring of the limits between the state of law and the state of exception. While for Agamben the blurring of those limits means that the state of law needs to appeal constantly to the state of exception, in the Occupied Territories there is also the constant need to anchor the state of exception in a fictitious state of law, or to adjudicate to the Palestinian Authority a fictitious sovereignty which de facto it does not exercise. In a response to the Supreme Court concerning a PHR’s petition, the Attorney General’s office stated As stated in the agreements between the State of Israel and the Palestinian Authority, powers and responsibility in the field of health were transferred from the military government and the Civil Administration to the Palestinian Authority. This principle was first established in the Agreement regarding the Preparatory Transfer of Authorities, the second appendix of which states that the powers and responsibility of the military government and the Civil Administration in the field of health shall be transferred to the Palestinian Authority; in the context thereof, responsibility for all the health institutions was transferred.49 The President of the Supreme Court claims constantly that Israel’s occupation must comply with humanitarian and international law. The appeal to the state of law was revealed as clearly fictitious in May 2004, when the Israeli occupation reached its most violent form, as buildings were destroyed, the population harassed and a tank fired on a Palestinian demonstration killing 8 people (a killing which “is not a crime,” since no one has been yet prosecuted). However, even when the state of exception becomes the norm, its violence needs to refer to a fictitious state of law. 3.

The Occupied Territories, the Exception and the Rhetoric of [Fictitious] Sovereignty In the previous section we saw how the role of the Israeli government and the IDF and the conditions of the Palestinians correspond to Schmitt’s and Agamben’s conceptions of sovereignty and the state of exception. The state of exception that exists in the Occupied Territories does not result from the norm; rather, as Schmitt claims, it results from Israel’s arbitrary (in the sense that it does not logically result from the application of the norm) decision. The Israeli government is the one that makes all decisions; it designs borders and decides over lives. This power does not stem from any legal norm, but results from sheer force. As Schmitt claims, Israel’s “decision frees itself from all normative ties and becomes in the true sense

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absolute.”50 However, there is a central aspect in which the situation in the Occupied Territories does not answer to Schmitt’s conception of sovereignty and the state of exception. For Schmitt the sovereign is bounded by the formula Protego ergo obligo (I can impose my decision since I offer protection). Protection is the sine qua non counterpart of sovereignty, but the Palestinians in the Occupied Territories are totally unprotected. Israel’s reoccupation of the Territories since September 2000 did not lead to its taking any responsibility for the needs and the protection of the Palestinian population, especially with respect to access to health care services. Thus, Schmitt’s definition of sovereignty is not enough to explain the situation in the Occupied Territories, and we should appeal to Agamben’s definition of the term. Palestinians are for Israel homines sacri, which can be killed but not sacrificed. As in Agamben’s definition of the concept homo sacer, Palestinians are not killed as the result of the application of the law but as a consequence of the suspension of the law and the blurring of the limits between norm and violence. Moreover, as Agamben argues against Schmitt, the state of exception is not the temporary suspension of the law in order to allow the return to the state of law. In the Occupied Territories the exception became permanent and the law exists only in the form of its suspension. As in the case of the Roman Iustitium, in which Agamben finds the antecedent to the state of exception, in the Occupied Territories the army can “kill a man without going to trial, . . . destroy his house, and take his belongings.”51 The situation in the Occupied territories conforms to Agamben’s claim that in the state of exception the force of law is isolated from the law itself. The norm (the Palestinian Authority’s rule) is valid but has no force, and military rule has no validity but has “the force of law.” The Palestinian population in the Occupied Territories lives in a space and a time where the law is suspended. They are subjected to pure de facto sovereignty, they are subjected to a force that “is outside of the law and of all forms of legal control.”52 The Occupied Territories became “a zone of anomy dominated by pure violence with no legal cover.”53 For Agamben, the link between the state of law and the state of exception reside in the fact that the first needs the constant appeal to anomy and violence. He claims that [F]or one reason or another, this space devoid of law seems so essential to the legal order itself that the latter makes every possible attempt to assure a relation to the former, as if the law in order to guarantee its functioning would necessarily have to entertain a relation to an anomy.54 However, as Israel’s responsibilization of the Palestinian Authority for providing health care to the Palestinian population shows, even in the state of exception there is a need to appeal to some sort of legal cover. The case of the Occupied Territories illustrates that the necessary link between norm and

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anomy functions both ways. Not only the state of law constantly refers to the state of exception, but the state of exception needs the fiction of a legal cover. The state of exception, which became the rule, builds on fictitious sovereignty, in order to perform. In the case of the Palestinians’ [lack of] access to health care services, Israel refers to a fictitious sovereignty and a fictitious state of law, as if the state of emergency would not be the real rule. The Israeli Supreme Court acts as if a fictitious state of law applied to the Occupied Territories. The President of the Supreme Court himself claims constantly that Israel’s occupation must comply with humanitarian and international law. The violence of the state of exception needs the referral to a fictitious state of law. While Agamben speaks about a “fictitious state of emergency,” in the Occupied Territories the state of emergency is real and the role of law (the rule of the PA’s law) is a fiction. The Palestinian Authority’s fictitious sovereignty allows the IDF and the Israeli government to separate the two terms in Schmitt’s Protego ergo obligo formula. Sovereignty (in the sense both of the decision about the exception and as the entity for whom men and women are homines sacri) does not require protection (neither in the sense of protecting the lives of Palestinians, since they are all sacri, nor in the sense of providing basic services). The PA’s sovereignty is fictitious since while it has the validity of the law, it lacks the force of law. However, this fictitious sovereignty enables the perpetuation of the state of exception, covering for the fact that the Israeli government and the IDF do not provide for basic services and needs. The appeal to the norm which lacks force functions as a way to deepen oppression, since its fictitious validity exempts the sovereign power (that which decides on the exception and for whom Palestinians are homines sacri) of the duty to provide even a minimum degree of protection. In sum, the situation in the Occupied Territories conforms to Agamben’s claim that Schmitt was wrong in positing a temporal and spatial separation between the state of law and the state of exception. As Agamben argues against Schmitt, in our times nomos and anomy, the state of law and pure violence, are not more separated, neither temporally nor conceptually. The state of law refers always to the anomy of pure violence and naked life. The Occupied Territories became “a zone of anomy dominated by pure violence,” where the exception is the rule and the norm is exceptional. However, the ways in which the Israeli government deals with health care issues in the Occupied Territories show that the lack of separation between the state of law and the state of emergency is reciprocal. The state of law refers to the state of anomy, but the state of emergency is reinforced by the appeal to a fictitious state of law. The sovereign’s raw power gains in effectiveness by appealing to fictitious sovereignty; the legal cover increases the sovereign’s power, which is not more limited by the obligation to protect its subjects. The legal cover represented by the appeal to the PA’s fictitious sovereignty exempts the Israeli government from any obligation to provide the Palestinians protection, such as the provision of health care services. Thus

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the fictitious sovereignty and the appeal to a fictitious state of law contribute to the perpetuation of the state of emergency. 4.

Conclusions The Occupied Territories are an example of a spatial unity under the state of exception. As in Schmitt’s definition of the state of exception, the situation in the Occupied Territories is not the result of a norm or constitution (on the contrary, the current situation is clearly opposed to international law) but the result of a decision, that of the Israeli government. Following Agamben, we can claim that in the Occupied Territories the force of the law and its legitimacy are separated, and the state of law is suspended. The Palestinian Authority’s law remains valid but lacks force, and Israel’s decisions and actions have the force of law even though Israeli law does not apply to the Occupied Territories.. Finally, as the case of the lack of access to health care services exemplifies, Palestinians in the Occupied Territories became homines sacri in Agamben’s sense, since they can die and be killed without their deaths been considered a crime. However, the case of the Occupied Territories presents two limits for Schmitt’s and Agamben’s understanding of sovereignty and the state of exception. The first one as discussed before, concerns the relationship between the state of law and anomy. While the state of exception does not result from the norm but from the sovereign’s decision, the decision still needs to appeal to the law. The limits between the anomy and the law are blurred not only because the law requires a constant reference to the state of anomy, but also because the state of anomy requires a constant reference to the law. The second point concerns Agamben’s claim that the state of emergency has become the rule and not the exception, not only for totalitarist governments but also for modern democracies, as illustrated by the confusion between the acts of the executive and the legislative powers. However, it is our contention that we must be able to differentiate between certain elements of the state of emergency that underlay modern democracies, and situations such as the one in the Occupied Territories, where the state of exception became the norm. Balibar’s distinction between state sovereignty and popular sovereignty may be of help concerning this second point.55 For both Schmitt and Agamben the only meaning of sovereignty is state sovereignty. In Schmitt’s case the state embodies the people in an unmediated and transparent way, as the nation, thus state’s sovereignty includes and obliterates popular sovereignty. Agamben, for his part, adopts the perspective reflected by Nietzche’s ironic enunciation “I, the state, am the people.” For him sovereignty is always state sovereignty; his conception of sovereignty does not take into account popular participation or the people’s role as constituent power.

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As against Schmitt and Agamben’s reduction of sovereignty to state sovereignty, we can follow Balibar’s suggestion that sovereignty has a dual character. Only in extreme situations it is reduced to only one of its two aspects. In the state of exception sovereignty is reduced almost completely to state sovereignty, in the case of popular revolutions it is almost solely popular sovereignty. We can make a distinction, thus, between the situation in the Occupied Territories, where sovereignty is only (the Israeli) state sovereignty, and popular participation is completely absent, and modern democracies, where sovereignty still presents its dual character. In the latter, the suspension of the law and the indeterminacy between the state of law and the state of anomy are limited by the presence, even in potential form, of popular participation, by sovereignty’s popular aspect. This being said, the necessity of the Israeli government and of the IDF to refer to the Palestinian Authority shows that even in the extreme situation of a prolonged state of exception, we still encounter the remains of sovereignty’s dual character.56 The case of health care services in the Occupied Territories teaches us that unmasking Israel’s appeal to the state of law as fictitious will confront the occupier with the need to protect, i.e. really take responsibility for the health care needs and rights of the Palestinians.

Notes 1. Schmitt, 5. 2. Ibid, 9. 3. Ibid 4. Ibid,12. 5. Balibar, 140. 6. Ibid 7. Agamben, 1998, 6. 8. Ibid, 73. 9. Ibid, 82. 10. Ibid, 28-29. 11. Ibid, 32. 12. Ibid, 18. 13. Ibid, 9. 14. Ibid, 19. 15. Agamben, 2002. 16. Benjamin, 4. 17. Agamben, 2002. 18. Agamben, 1998, 57. 19. Ibid, 64. 20. Agamben, 2002. 21. Ibid

Dani Filc and Hadas Ziv 22. Without the necessary powers to efficiently take care of this responsibility. 23. Ziv, 2002. 24. Swissa. 25. Ziv, 2002. 26. Ibid 27. Ziv, 2003. 28. Ibid 29. When a permit is asked on medical grounds, the petition will be checked by the Health Coordinator in the Civil Administration. 30. Ibid 31. High Court 9109/96. 32. Ziv, 2003. 33. Ziv, 2002. 34. High Court 4764/04:3. 35. Ziv, 2002, 52. 36. Ziv, 2003. 37. Letter from the Ministry of Defense, 26/03/03, quoted in Ziv, 2003, 16. 38. Quoted in Swissa, 8. 39. Letter from the Ministry of Defense, 26/03/03, quoted in Ziv, 2003, 16. 40. Swissa, 8. 41. Ibid 42. Ziv, 2002. 43. Ibid 44. Ziv, 2003. 45. Ziv, 2002. 46. Swissa, 12. 47. Ziv, 2002, 48. 48. High Court 4764/04:3. 49. Ziv, 2002, 36. 50. Schmitt, 36. 51. Agamben, 2002. 52. Ibid 53. Ibid 54. Ibid 55. Balibar, 140. 56. This is also true for the other pole, a popular revolution where sovereignty is apparently reduced to popular sovereignty. However, even in situations where a radical reversion of the existing order takes place, the old state still appears as a residue which constrains the revolution’s possible results, and as the necessary horizon which unifies the people as acting sovereign.

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Bibliography Agamben, Giorgio. Homo Sacer: Sovereign Power and Bare Life. Stanford CA: Stanford University Press, 1998. _______. The State of Emergency, lecture given at the Roland Barthes Center, 2002. (4 April 2004). Balibar, Ettiene. We, the People of Europe? Princeton, NJ: Princeton University Press, 2004. Benjamin, Walter, “Theses on the Philosophy of History.” In Illuminations, London: Collins Fontana Books, 1973. Schmitt, Carl. Political Theology: Four Chapters in the Concept of Sovereignty. Cambridge MA: MIT Press, 1985. Swissa, Shlomi. Harm to Medical Personnel. Tel Aviv: Physicians for Human Rights-B’tzelem, 2003. Ziv, Hadas. A Legacy of Injustice. Tel Aviv: Physicians for Human Rights, 2002. _______. At Israel’s Will: the Permit Policy in the West Bank. Tel Aviv: Physicians for Human Rights, 2003.

Chapter 7 Mental Health Care During Apartheid in South Africa: An Illustration of How “Science” Can be Abused Alban Burke The one thing that really is trying to tyrannise through government is Science. The thing that really does use the secular arm is Science. And the creed that really is levying tithes and capturing schools, the creed that really is enforced by fine and imprisonment, the creed that really is proclaimed not in sermons but in statutes, and spread not by pilgrims but by policemen – that creed is the great but disputed system of thought which began with Evolution and has ended in Eugenics.1 1.

Introduction For many decades South Africa has been a country that has been in the international limelight. It is known for its long history of human rights abuses, repression, racial segregation, forced removals from homes and land, pass and curfew laws, violence and poverty. All the governments in this country up to 1994 have been guilty of poor human rights policies; however, this paper will only cover the period from 1961 to 1994, the so-called Apartheid era of South Africa. The cornerstone of “apartheid” (separate development/segregation) was based on “scientific” research, and contrary to popular belief, did not originate in South Africa as a random idea of Hendrik Verwoerd. In the late 1800’s, science was embracing both the medical and physical, and moving away from the idea of man as a spiritual being. In 1798, Thomas Malthus published an essay entitled Principle of Population. The central tenet of the essay was that a population increases exponentially and would, if unchecked, lead to the population size outstripping food supply. Charles Darwin was so impressed by this idea that he included it in his theory of evolution and natural selection.2 However, these ideas were twisted around and racial differences and racial superiority became a focus in research; a whole new “discipline,” called eugenics was born. The term “eugenics” was first coined by Francis Galton in 1869 in his book “Hereditary Genius.” The term came from the Greek “eugenes,” meaning “good in stock,” and claimed to study the hereditary improvement of the human race by controlled selective breeding. Galton claimed that judicious mating could “give more suitable races or strains of blood a better chance of prevailing speedily over the less suitable.” In the 1900’s in Germany, eugenics and psychiatric genetics were being enthusiastically studied and taught as a new and important branch of science. The illogical process of importing economic principles into biology by

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Darwin and Galton did not go unnoticed, however. Friedrich Engels commented: The whole Darwinist teaching of the struggle for existence is simply a transference from society to living nature of Hobbes’ doctrine of bellum omnium contra omnes and of the bourgeois doctrine of competition together with Malthus’ theory of population.3 There was also much resultant propaganda about this new methodology.4 These views found their way to South Africa through Hendrik French Verwoerd, who has been credited as the father of Apartheid. Verwoerd was an eminent scholar. He was a lecturer in Psychology and later Sociology at Stellenbosch University. From 1926 to 1927 he studied in Germany, where he came into contact with Fisher, Binding and Hoche, who were all supporters of an idea of human heredity and racial hygiene, at the Leipzig University. It is interesting to note that official biographies of Verwoerd make no mention of this time in his life, or about his connection with eugenics. From 1928, he held a chair in Applied Psychology at Stellenbosch and then left academia to become the editor of a newspaper.5 Dr. Malan, a clergyman and Prime Minister of South Africa in 1948,6 was a close friend of Dr. Verwoerd, and he firmly believed in Verwoerd’s concept of Apartheid. The idea behind Apartheid was to force Black South Africans to live away from whites in other communities, sterilizing the Black South Africans, prohibiting intermarriages and even allowing “medical” experiments on the black population. In 1950, Malan appointed Verwoerd to be Minister of Native Affairs, placing him in charge of all Black South Africans. In this time several new laws were passed such as the prohibition of Marriages between Whites and Blacks and forced relocation, which were designed to separate poor whites away from blacks by giving poor whites property and taking away all property rights from blacks.7 Verwoerd finally became prime minister of the Republic of South Africa in 1958. As cabinet and prime minister, his racially discriminatory views were turned into various laws and acts. His views on racial issues and his eventual apartheid structures were supposedly not malicious, but appear to have been a result of his great involvement in psychiatric genetics and the position of the institutions and educators under which he studied.8 2.

From “Science” to Law The Wall Street crash of 1929 and the ensuing international economic recession, combined with a devastating drought, had an adverse effect on the South African economy.9 The majority of South Africans were thrown into abject poverty and by 1939 some 300,000 whites were considered to be living in “terrible poverty”; the majority were Afrikaners. There was

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concern amongst the white politicians that the position of Afrikaners was precarious and that the business sector would employ blacks rather than whites at cheaper rates. Malan stated that: “The competition was lethal for the white civilized man in the unskilled labour market if he wanted to maintain his civilized standard of living.”10 In the period between the two World Wars, the social sciences and humanities were significant contributors to the debates on social issues in the country. One of the major problems was the so-called “Native problem.” Psychology, amongst other disciplines such as Psychiatry, Sociology and Anthropology, legitimized, supported and encouraged a social order based on race. Two ideological positions developed in this time, i.e. eugenics and Christian-nationalism. Eugenics provided arguments for social inequality in terms of biology, whilst Christian-nationality provided a theological argument. In tandem these two ideologies enabled the Afrikaner politicians and social scientists to mobilize the impoverished Afrikaans population and to discriminate against Black South Africans.11 In the post war period, tensions between the various races in the country increased.12 In 1947, Donald Molteno, one of the Native Representatives, stated: “Our whole African population has been uprooted. They have been proletarianised, pauperised and demoralised. . . . Their consequent bitterness bodes ill for the future of the relations of black and white.”13 Despite criticism from all quarters, nationally as well as internationally, the white politicians, under the leadership of Verwoerd, continued with a policy of Apartheid. The ruling political party had white supremacy as its ultimate goal, and it called for a pure white race. Carl Bingham in 1923 provided justification to Verwoerd’s concerns about the mixing of races and the feared resultant decline of (American) intelligence because of the presence in that country of the Negro.14 Apparently Verwoerd took this and the Germans’ views to heart, and it is little wonder that South Africa’s segregation laws – so similar to German psychiatry’s Racial Purity law banning the cohabitation of Aryans and non-Aryans – forced generations of Black South Africans into unemployment and poverty. Verwoerd held strong views regarding the importance of the race barrier being held in place. And his “expertise” as a psychologist gave his policies of “separate development” and “separate freedoms” the veneer of professional authenticity. Verwoerd stated in September 1943, “This segregation policy, which also means protection and care for the Native in the land of the Afrikaner, but decisively rejects any attempts at equality, gives the Native an opportunity to develop what is his own, so that he can have pride and selfrespect as a Native, instead of being continually humiliated as a failed and imitation white.” He stated that South Africa would be doomed if its policies allowed the native to “improve his skill, draw better wages and provide a better market within ‘white’ South Africa.”15 These statements contained a hidden agenda which, if understood, explains a great deal about the fate of Black South Africans in South Africa under apartheid.

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The application of eugenics by Verwoerd and his government, and his successors found its way into various laws and acts. The Population Registration Act of 1950 ensured that all the people in S.A were classified according to skin colour. Following on this act, certain urban areas were set aside as “Whites Only” areas as legislated by the Group Areas Act. Other races were only allowed into these areas if they had valid “pass books” and work permits. Forced relocations uprooted persons from their land and often destroyed their belongings.16 These laws not only classified people according to race, or prescribed where they could live, but also prescribed interpersonal relationships. The Mixed Marriages Act (changed in 1989 to the Immorality Act) banned marriages between racial groups and was later altered to prohibit any intimate relationships between racial groups. These and many more acts had devastating effects on the country. Throughout the world, non-white ethnic groups have suffered from the use of psychology texts which have propagated the blatantly false idea of black inferiority through the use of culturally biased intelligence tests. According to one report, “The mental tests . . . point clearly to the fact that the observed inferiority of the Negro is to a large extent one which no amount of education or favorable environment can obviate.” South Africa was no exception. The Bantu Education and Extension of University Education Acts were legitimized in this fashion. Verwoerd explained to Parliament during the debate of the Education Act that: “Racial relations cannot improve if the result of Native education is the creation of frustrated people who, as a result of the education they received, have expectations in life which circumstances in South Africa do not allow to be fulfilled immediately, when it creates people trained for professions not open to them.”17 Education in South Africa was therefore consciously designed on a two-tier system – excellent schools for the whites and less-than-excellent schools for the Black South Africans, designed solely to “keep them in their place.” Universities were created along racial lines, but the white universities far outnumbered the black universities. As a result of poor education, many black South Africans could only gain employment as labourers for minimal wages. This resulted in widespread poverty amongst the black population.18 Health and welfare services were also divided along racial lines, and the distribution of resources was skewed towards services for whites. Only white people had the right to vote, and only “white” political parties were allowed to exist. So-called “black” and communist parties were banned and were only legitimized in 1993. Many South Africans were exiled or imprisoned if they dared to oppose the South African government. Due to the exclusion of “non-whites” from mainstream society, there was a strong counter reaction to government which escalated into general civil unrest and the start of an armed struggle. Police violence and the aftermath of post traumatic stress is well documented as a result of apartheid. The continual insecurity of being harassed by state structures also added to this.19 Black South Africans were not divided by the adversity of apartheid.

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Coping mechanisms also became a way to beat the system – by refusing to adopt white norms, by wearing traditional dress and attending traditional functions, and by using other covert forms of resistance, both defensive and offensive strategies.20 3.

The Mental Health Care Act: “Science” Rears Its Ugly Head Mental Health care during the Apartheid years had a double discrimination character. On the one side, the Mental Health care act was used as a vehicle to remove “undesirable” elements from society, and on the other side those black South Africans who needed professional services were either denied these services or were given sub-standard services. With millions of people facing substandard education, unemployment, no opportunities and, consequently, low morale, it is no wonder that psychiatric institutions could be established or that the justifiable and normal reactions to this oppression would be further defined in psychiatric or psychological terms. And this, of course, only served to justify further oppression. The result of the Apartheid laws was widespread political and civil unrest. By the 1980’s SA was involved in a conventional war in South West Africa and Angola as well as urban warfare and policing. As a result of the various laws and acts that outlawed political activities, more and more people became involved in the political struggle. Many of these people did not commit “crimes” but created a nuisance for the government. Alternative ways had to be found to “remove” these agitators and civil disobedients from society. The involuntary commitment law of 1973 was an ideal vehicle with which to remove persons and put them in an unknown place for a legally unspecified period of time without either their families or they themselves knowing where they were. “Idle or undesirable” Black South Africans were admitted to mental institutions for various reasons – because they “broke curfew,” if they were physically ill (going to general hospitals to seek medical treatment and subsequently being committed to psychiatric hospitals), or if they were considered dissidents. Disused mining camps were turned into psychiatric facilities to incarcerate thousands of Black South Africans. By 1976 admissions to these “private” psychiatric hospitals had increased by 400 percent over a 10-year period. The psychiatric institution had become the dumping ground for the by-products of large-scale social and political abuse, and a private company was awarded the contract for taking care of state long-term custodial patients in “special” facilities. This care was provided at a per-head payment for 90% occupancy of the institutions, which was guaranteed by the Department of Mental Health. Details of expenditure of these monies by the company for the years prior to 1994 are not available. Operating yet again under the guise of “help,” psychiatrists entrusted with the care and welfare of black patients subjected them to barbaric treatment. The extraordinary death rate was finally labelled in the South African press in 1994 as “mental genocide.” Some of the abuses that occurred

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in these institutions included that up to 10,000 black people at a time were incarcerated, many of whom were reportedly excessively drugged. The majority of the 10,000 patients slept on mats on concrete floors; dormitories were crowded. The reason given was that Africans prefer to sleep on the floor. “Squat” toilets ran down the middle of the sleeping quarters, and up to 30 patients at a time shared communal showers, sometimes without hot water. Electro Convulsive Therapy (ECT) was administered without anaesthetic, a “treatment” that can snap the spine of the unfortunate patient. Not administering anaesthetics before ECT was based on the opinions of Benjamin Rush, the father of American Psychiatry, who held a belief that black people had a morbid insensitivity to pain compared to that of whites. A further reason cited by The Chief State psychiatrist in South Africa in 1976, Dr Henning, was that it was too expensive, too slow and too risky. The implications of anaesthetic use would be that they would have to double their staff.21 When black patients died from easily treatable diseases, they were given communal burials or, if the bodies were not claimed by family, used for “anatomical studies.” The patients were involuntarily detained in the facilities. Discharges from the hospitals were few, each one authorized only by a State psychiatrist. Although privately owned institutions, the psychiatrists who treated the inmates were provided by the Health Department. No public record existed on how monies were spent on the camps, and the secrecy surrounding the institutions was almost impenetrable. They were not listed in the annual Health Department reports or the reports of other official bodies. “Patients” were hired out to companies to perform labour without pay. This labour force made coat hangers, wire brushes, rubber leg guards for miners, mats, sheets, clothes and aprons. This was called “industrial therapy.” And, of course, families were destroyed when members were removed from their homes at night by the police and detained or incarcerated in mental hospitals for indefinite periods and sometimes were never seen again.22 In 1970, the Citizens Commission for Human Rights discovered the disused mining camps, and the horrific abuse that was occurring there. A report of this abuse was made to the World Health Organisation and the Red Cross. Instead of addressing the brutality and injustice, the government gave in to psychiatric pressure and amended the Mental Health Act to make it a criminal offence to report on conditions in any psychiatric hospital or to photograph or sketch them. Then it also banned Peace and Freedom issues exposing psychiatry’s abuses and stopped overseas journalists from entering South Africa if they reported on the psychiatric camps. It was a classic case of an attempt to kill the messenger.23 Medical professionals in the field of psychiatry were placed in the position of having to take positions of neutrality, in instances where they were not happy with the state of supply of medical treatment. If they were in agreement with the policies of the State, they did their work from a position

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of bias and racism and aided the abuse that was taking place under the banner of science and acceptable practice. This moral disengagement hinged on the view that these persons were somehow “less human” and perpetuated the practice of separation because of inequality and difference. If medical doctors spoke out against the abuse, they were persecuted, often not only by the police, but also by their peers. They were at risk of harassment, banning, torture and murder. Because of this, most of the crimes of medical personnel – specifically in the case of psychiatrists – were of omission. Failure to report whippings at which they were required to be present, failure to provide adequate care and protection of their patients etc.24 Many health professionals ignored the problem of apartheid because they felt that it belonged with politics and not the science of mental health. “Those who did venture onto this terrain were castigated by their colleagues. As a result there is very little psychiatric and psychological literature from the Apartheid era that examines the impact of Apartheid on mental health. The Psychological Association of South Africa never spoke out against Apartheid.”25 Such was the pressure on these professionals that they would choose to publish critical articles anonymously for fear of reprisals. One such professional states that he was concerned about the consequences of daring the status quo because of the ferment and mistrust in the psychology ranks, and he also mentions how the Professional Board of Psychology discriminated against him in credentialing his registration.26 4.

So What Went Wrong? The effects of apartheid have left a harsh legacy. It is not surprising that in April 1995, the new South African government announced a national inquiry into human rights abuses committed in psychiatric institutions throughout South Africa and also a review of the Mental Health Act. The profession, however, remains shameless. During the apartheid years psychiatrists were quick to diagnose the response of Black South Africans to their oppression as a “persecution complex.” Today, in the new South Africa, these enterprising professionals see only the opportunity to establish a new market. The long and painful recovery which black South Africans face has been given another psychiatric label: “post-traumatic stress disorder.” Although South Africa is celebrating 10 years of true democracy in 2004, we cannot merely close the chapter on Apartheid and move on. Surely we must ask ourselves what went wrong so that we can learn from history. Karl Popper states: “If we are uncritical we shall always find what we want: we shall look for, and find, confirmations, and we shall look away from, and not see, whatever might be dangerous to our pet theories.”27 In order to make some sort of sense of the atrocities, the events and actions have to be seen in context. Apartheid was a fully fledged ideology that contained goals and principles for the reconstruction of society. The main tenets of the ideology were, first, that the basic unit of society is not the individual, but the volk (Afrikaner nation) with its God-given right to exist.

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The nation was defined as those people who were of similar (Afrikaner) descent and racial stock and who shared a common history, culture and sense of destiny. Individuals could realize their human potential only through identification with and service for the volk (Afrikaner nation); hence, institutions such as the school and the church had to be used to compel an individual to a close identification with his volk. So, too, Apartheid was the best means of avoiding political friction, while it also ensured the survival of whites and facilitated the highest measure of development for each ethnic group. Finally, Apartheid supposedly granted others that which one group (the Afrikaner) demanded for itself. In this regard Verwoerd stated in 1950 that the government adopts the attitude that it concedes and wishes to give others precisely what it demands of itself; it believes in the supremacy of the European in its own sphere, but equally in the supremacy of the Black South Africans in their sphere.28 There can be no doubt that this ideology was based on race, and the supremacy of race, alone. Verwoerd, a supposedly astute scholar in the social sciences, found a “scientific” theory (eugenics), which justified his own beliefs to such an extent that he translated this theory into oppressive laws under the guise of “humanism.” He must have become oblivious to all other theories that criticised and opposed the field of eugenics. He lived through World War II and the international uproar over the Holocaust and must have followed the Nuremberg trials with interest, and his government had to field the criticism, isolation and sanctions of the international community. As a “scientist,” what happened to his rational and critical thinking? Although we could attribute the Apartheid system to one man, Foucault observed that: “One doesn’t have here a power which is wholly in the hands of one person who can exercise it alone and totally over the others.”29 The “others” referred to in Foucault’s argument would be the white South Africans. The seed for Apartheid was already planted at the turn of the previous century when whites created towns and cities as “orderly” white establishments that were isolated from the “unhygienic” standards of black people.30 Racism was already rife and grew stronger over the years, and science merely provided justification for the racism to such an extent that one could almost refer to it as “scientific racism.”31 What is even more worrying is the silence of all the other scientists and more especially in this case the mental health professionals? It should be blatantly obvious to anybody who reads the history and accounts of the Apartheid era that research as well as the implementation of its results were highly unethical. However, the abuse of patients was licensed by science, and “treatment” was based on scientific principles; therefore any professional who applied or supported the methods, or even stayed neutral, would have been protected by their ethical codes. Furthermore the research and treatment made perfect sense to them at the time. At this point, however, it is necessary to add another dimension to the concept of eugenics in order to gain a broader understanding of people’s

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actions in this time. Lenz distinguished between two types of eugenics, i.e. positive eugenics (measures to stimulate the spreading of genetic traits that are considered good) and negative eugenics (measures to repress the spreading of genetic traits that are considered bad.32 One could, on this dimension, classify various Apartheid practices in terms of positive and negative eugenics. The segregation of race groups and the control of marriages could be considered to be both positive and negative as these laws aimed at preventing the mixing of genetic traits to ensure a pure white race, but at the same time subjecting the black people to poor living conditions that would ultimately lead to their extinction. At the same time white South Africans were encouraged to have more children and the State subsidized families who had more than three children (positive eugenics) to make sure that the white race would ultimately outnumber the black races. The state could also authorize the sterilization of people not deemed to be fit to be parents (negative eugenics) in order to ensure that only the best genetic material would survive. Other examples of negative eugenics would include genocide, murder and capital punishment as well as limited education and employment opportunities for black South Africans. Given this classification, one could argue that Verwoerd’s policy was primarily one of “positive eugenics” in that it ensured that the white race would remain pure. The policy ensured that the white race received more benefits (education, health care and economic) which would create the ideal environment for the white race to survive and prosper, but at the same time would make it difficult for other races to survive and prosper. Although not stated overtly, one could only infer that such a policy would ultimately lead to the extinction of “inferior” races. This ideology created the opportunity, and silently approved and encouraged, negative eugenic practices which could be exploited by scientists from different disciplines. There were a few other factors which contributed to the milieu of unethical research and technological development. First, most of the tertiary institutions had exclusively white students and academics, which resulted in racially biased research. Second, the government censored media reports, which combined with a general state of secrecy, resulted in many of the atrocities and unethical research not being made public. Most of the research done by the military and government agencies had a top secret rating, and even some of the research done by universities was rated secret, which resulted in research reports not being made available to local or international scientists or the public. This provided some scientists the ideal circumstances for immoral research. Third, international sanctions that were imposed on the country provided an impetus for South African scientists to do research and develop new technologies. Scientists across all fields were encouraged to develop new technologies. A further argument that was raised by Apartheid scientists was that Apartheid was essentially a political system, not to be confused with science. It would seem as if, unfortunately, the critical insight of the great scientists

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and the moral consequences drawn from it, have been lost by equating knowledge with only one aspect of it, functional knowledge. Scientists erroneously assume that they are value free and neutral and distance themselves from moral and political issues as if they are of no concern to them. Szasz is of the opinion that: “In the history of science, thinking in terms of entities has always tended to precede thinking in terms of processes.”33 The scientists discover new facts, develop new theories which result in new technologies, but distance themselves from the application thereof, which then paves the way for totalitarian states to abuse the science for their own means without limitation.34 Szasz warns against this position, as the prestige of the scientist can lend power to its possessor so that he may be able to gain social goals that he might not have otherwise been able to attain.35 5.

Conclusion At times the use of scientific information can dramatically impact other fields seemingly far removed from the scientific community itself. Scholars and public policy developers from many fields and backgrounds rely on the accuracy and objectivity of the information developed and passed on by a specific scientific discipline. If the information is incorrect, questionable or even misapplied, it becomes problematic. Instead of scientific information, it becomes scientific “misinformation,” expanding inaccuracies, and becoming an integral part of theories of that and other scientific disciplines, with the danger that it could misguide public policy, which may rely on scientific experts.36 Racial prejudice is an example of how scientific theories and arguments were used to support the notion that certain races are inferior, thereby legitimising crimes committed against certain races across the world and throughout history. The emergence of eugenics as an “applied science” culminated not only in the horrendous atrocities committed by the Nazis during the Third Reich, as well as in South Africa during the Apartheid era on a large scale, but also on a smaller scale in many countries across the world. The scientists who provided the scientific backing for these policies were respected scientists and academics who were influential enough to delay an unbiased historical confrontation. A related problem is that scientists are often so devoted to their particular field of study that they do not stop to reflect on the consequences of their deeds. Whilst the anthropologists may have been contemplating the inferiority of certain races and cultures, medical scientists used this assumption to their own benefit in using people from inferior races as subjects in their inhumane experiments. They directly profited from these theories because their experiments depended on a political system that was contemptuous of human beings.37 Although natural scientists may argue that they have no concern with politics, social scientists will have greater difficulty getting away with such an argument. Some authors argue that a discipline, such as Psychology, has no scientific concern with politics as Psychology is a science and science is value free.38 Yet the pursuit of a value free science, specifically in the

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social sciences, may lead to the unwitting support of a particular sociopolitical order.39 The implication is that if there is an uncritical stance by scientists, it lends powerful support, through silence, for practices which may be destructive. The pertinent issues raised in this paper are that we should not always rely on science as an “objective” framework for our actions, and scientists must be circumspect in their research and the implementation of their results as they may contribute directly or indirectly to atrocities being committed in the name of science. It must be kept in mind that non-scientists cannot really sort out the accuracy and reliability of contradictory scientific claims, and scientists may be unaware of what happens to the data and theories once they have been submitted other than for specifically scientific purposes – but this does not exonerate them from their responsibility to ensure that the scientific and other communities are not mislead and to speak out against misinformation. After the 1994 elections the new government instituted the Truth and Reconciliation Commission as a political compromise amongst the opposing forces, with the goal of making the truth about South Africa’s past known. During the hearings it became blatantly obvious that white health professionals ignored internationally recognized standards for medical personnel in support of apartheid policies and engaged in a pattern of abuses. The Commission made the recommendations for the health sector in the new political dispensation, which included: the elimination of racial discrimination in the health sector, the reform of societies of health professions and the adoption of human rights standards, the removal of all individuals from regulatory bodies who failed to investigate human rights abuses, and rewriting the mental health law to assure that fundamental human rights are respected. Furthermore, all health professionals have to be trained in human rights and bioethics based on international human rights principles, emphasizing the responsibility of health professionals to promote and protect human rights. It was also recommended that the health sector be monitored for compliance with human rights.40 Only history will tell whether these recommendations and their implementation will be successful.

Notes 1. Chesterton, 79-85. 2. Cavanaugh-O’Keefe. 3. Ibid, 2. 4. Citizens Commission on Human rights, “Psychiatry and South Africa,” Creating Racism: Psychiatry’s betrayal (28 April 2004). . 5. Scholtz, 10-11. 6. Akinwumi.

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Mental Health Care During Apartheid in South Africa 7. Sex Education Links, “Adolf Hitler: Nazi projects: Did the Third Reich create Hepatitis G and HIV?” History of Sex, October 2004 (11 October 2004). . 8. Citizens Commission on Human Rights. 9. Akinwumi, 2. 10. Gilliomee and Schlemmer, 32. 11. Louw. 12. Akinwumi, 4 13. Phyllis Lewsen, Voices of protest: From segregation to Apartheid, 1938-1948 (Johannesburg: Ad Donker, 1988), 255. 14. Citizens Commission on Human Rights. 15. Scholtz, 218. 16. Chapman and Rubenstein, 1. 17. Scholtz, 25. 18. Chapman and Rubenstein, 45. 19. Ibid, 53. 20. Webster, 25. 21. Citizens Commission on Human Rights. 22. Chapman and Rubenstein, 20. 23. Citizens Commission on Human Rights. 24. Chapman and Rubenstein, 20. 25. Kale, 1254. 26. Naidoo, 5. 27. Monk and Raphael, 486-487. 28. Gilliomee and Schlemmer, 44-55. 29. Foucault, 156. 30. Gilliomee and Schlemmer, 3. 31. Peet. 32. Cavanuagh-O’Keefe, 4. 33. Szasz. 34. Ellul, 287 35. Szasz, 10. 36. Irving. 37. Weigmann. 38. Schweizo. 39. Ingleby, 5. 40. Chapman et al.

Bibliography Akinwumi, Elijah Olu. “Malan, Daniel Francois: 1874-1959: Dutch Reformed Church of South Africa.” The Dictionary of African

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Christian Biography. September 2004. (11 October 2004). Cavanaugh-O’Keefe, John. “Introduction to Eugenics,” Catholic Spiritual Direction. January 1995. (11 October 2004). Chapman, Audrey R., H. Jack Geiger, Vincent Iacipino, et al. “Human rights and Health – The legacy of Apartheid,” Physicians for Human Rights. 1997. (1 September 2004). Chapman, Audrey R. and Leonard S. Rubenstein. Human rights and health: the legacy of apartheid. New York: American Association for the Advancement of Science, 1998. Chesterton, Gilbert Keith. “The history of a Eugenist.” In Eugenics and other Evils: An argument against the scientifically organized state, ed. Michael W. Perry, 79-85. New York: Baker & Taylor, 2003. Foucault, Michel. “The eye of Power.” In Power/Knowledge: Selected interviews and other writings (1972-1977), ed. Colin Gordon, 146-165. Brighton, Sussex: The Harvester Press, 1980. Gilliomee, Hermann, and Schlemmer, Lawrence. From Apartheid to nation building. Cape Town: Oxford University Press, 1989. Irving, Dianne N. “The impact of ‘scientific misinformation’ on other fields: Philosophy, theology, biomedical ethics, public policy.” American Bioethics Advisory Commission. 1999. (11 October 2004). Ingleby, David. Critical Psychiatry: The politics of Mental Health. Harmondsworth: Penguin, 1981. Kale, Rajendra. “ New South-Africa’s mental health.” British Medical Journal, 310 (1995): 1254-1257. Lewsen, Phyllis. Voices of protest: From segregation to Apartheid, 1938-1948. Johannesburg: Ad Donker, 1988. Louw, Johann. “Social context and Psychological testing in South Africa, 1918-1939.” Theory and Psychology 7 (1997): 235-256. Monk, Ray, and Raphael, Frederic. (2001). The great philosophers. London: Phoenix, 2001. Naidoo, Anthony V. “Community Psychology: Constructing community, reconstructing psychology in South Africa.” Inaugural lecture: University of Stellenbosch, 2000. Peet, Preston. “Scientific racism,” Disinformation, 6 July 2003 (11 October 2004). . Scholtz, Gert D. Dr Hendrik Frencsh Verwoerd: 1901-1966. Johannesburg: Perskor, 1974. Schweizo, John J. “Politics and psychology.” Bulletin of the British Psychological Society 32 (1979): 177-178. Szasz, Thomas S. The myth of mental illness: Foundations of a theory of personal conduct. New York: Harper & Row, 1974.

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Webster, Diane. “The economy of survival.” Work in progress 10 (1979), 10-20. Weigmann, Katrin. “In the name of science: The role of biologists in Nazi atrocities: lessons for today’s scientists.” EMBO Reports 2 (2001): 871-875.

Chapter 8 Schistosomiasis and Capital Marxism Rui Zhu The following is a case study of a disease caused by the construction of the Three Georges Dam in China. The study is not a medical or epidemiological report, since some crucial data on the disease are not yet available or disclosed to the public. The study rather illustrates a particular relation between evil and the state. An evil is so-called oftentimes because it mounts a grave challenge to the state or the livelihood of a community. The presence of evil, or its merely alleged presence, can give the state a mantle to extend its power and take drastic actions to impose its will. Because of this, I am inclined to the opinion that evil is a fiendish ally of statehood, for it gives the state a legitimate opportunity to increase its influence. Based on this account, it would not be surprising that a state could sometimes deliberately and surreptitiously generate an evil and reap benefits from its fruit. The Chinese government has put itself in a win-win position by constructing the enormous Three Georges Dam. Not only does the Dam itself symbolize the triumphant will of the central leadership, it is also getting a much needed public opinion boost by fighting the disease that the Dam’s construction has generated. This win-win scenario will remain the case as long as the epidemiological link between the disease and the Dam is kept from the public. In the following, I will briefly examine the history and nature of the disease and attempt to prove that the disease is indeed connected to the Dam. In the last section, I will use this case phenomenon to illustrate a nebulous but unfeigned socio-political philosophy that has taken roots in China and been used to justify many state-generated evils. The Visitation of Wen Sheng Little public attention has been given to the ongoing re-emergence and spread of schistosomiasis or liver fluke disease along the Yangtze River. Two reasons seem to explain this indifference. First, schistosomiasis, although contagious and deadly, is endemic only. According to Dr. R. G. Robertson’s article of 1922, “Schsitosomiasis in the Shanghai Region,” the parasitic disease is found in “in the Yangtze Valley, in JiangSu, ZheJiang and AnHui Provinces, SuZhou and Jia Xing districts being particularly heavily infected.”1 The relatively stringent biological and ecological requirements of the snail Oncomelania hupensis, the intermediate host of the liver fluke, naturally confine the disease to “climatically defined” areas.2 Second, the fear factor is diminished by the sense of familiarity people have towards the disease due to its ancient history and prolonged presence among humans. Haematuria with urinary bladder disturbances (a typical clinical symptom of the disease) has been mentioned in the Egyptian Four Papyrus papers dated back to 1950-1900 BC.3 Evidence of chronic schistosomiasis is also 1.

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discerned in the corpse of a Chinese lady from 200 BC.4 In the early seventies of the last century, when I was a kid living in Long Quan County, AnHui Province, patients with bloated abdomens walking listlessly around the isolation ward at the local hospital were always a sight of curiosity for my untutored sense. As I was preparing this article, I called my mother who still lives in the same region. She was intrigued by my interest in the ‘blood sucking fluke’ (xue-xi-chong, the Chinese term for the disease). She observed matter-of-factly: “Yes, it’s back, the god of plague is back.”5 From the epidemiological point of view, however, the current comeback of the disease is nothing short of being spectacular. In Mao’s era, largely due to the effectiveness of the “bare-foot doctor” public health system and the vigor of a national campaign aiming at the eradication of the disease, the infection rate of the susceptible population in Hunan Province, for example, was reduced from 80% in the 1950s to around 7% in the recent past. Since the late nineties, there has been a dramatic increase in cases of schistosomiasis infections along the Yangtze River. According to a report published on March 26, 2004, there are now more than 210,000 infections in Hunan Province alone.6 On April 27, 2004, the Chinese Ministry of Public Health states there are now about 810,000 infected cases in China and the susceptible population reaches 60 to 100 million. Besides the quantitative increase, infections have also spread to new areas. The Three Georges Dam region, which covers 17 counties (BaXian, JiangBei, ChangShou, WuLong, FuLing, FengDu, ShiZhu, ZhongXian, WanXian Shi, WanXian, KaiXian, FengJie, WuXi, BaDong, ZiGui, XingShan and YiChang) and has a total population of 14.59 million (89.7% of which work on farmlands), used to be free of schistosomiasis and its host snail species. Since the construction of the Dam began, there have been constant reports of new infections. According to an article published in 1999, the estimated number of infected migrant workers who labored on the Dam project reached 20,000 at the time.7 The Three Georges Dam region now connects SiChuan and HuBei, the two traditionally infected regions, and forms with them one spectacular endemic zone. In contrast to the geographic distribution described by Dr. Robertson, schistosomiasis now covers a large area, including 110 hard hit counties in seven provinces (HuNan, HuBei, JiangXi, AnHui, SiChuan, and YunNan) and relatively moderate areas in six other provinces and municipalities (ShangHai, ZheJiang, GuangDong, GuangXi, FuJian, ZhongQing). 2.

The Missing Link While the public is not much concerned, Chinese scientists have done a remarkable job in tracking and analyzing the disease. Excellent work has been done in analyzing the social and economic factors in various endemic areas such as in AnHui (insular islet endemic areas), JiangXi, HuBei and SiChuan. Some local governments have appropriated significant amount of money in fighting the disease (JiangXi this year devoted 15 million yuan

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to controlling the disease). While searching through numerous medical journals and governmental reports, I was impressed by their meticulous attention to every detail of the disease transmission and had reason to expect that the disease in some areas might be effectively controlled. However, I saw a conspicuous lacuna in the medical and governmental literature: every source deliberately avoided the real cause of the sudden revival of schistosomiasis – the construction of the Three Georges Dam, except for one source by Shu Faseng cited above. Even in Shu’s article, the spread of the disease in the Three Georges Dam region was attributed more to the influx of the migrant workers from other endemic areas than to the construction of the Dam itself. In other sources, the flood of 1998 was named as the most important culprit for the return of the disease. In order to illustrate the clear link between the building of a large dam and the spread of schistosomiasis, I will in the following briefly explain the nature and transmission of the disease. In her book, The Coming Plague, Garrett writes: Schistosomes are parasitic organisms with a complex life cycle in which, at different stages of the organism’s development, the creature grows inside the snails, on the surface of freshwater plants, and inside human beings. Its eggs are excreted via human waste into water supplies and are taken up by riverbank and lakeside snails. Inside the snails the eggs hatch and the organisms advance into the larval stage. Those larvae are excreted by the snails back into the lake or river, where they come to rest on the stems and leaves of underwater plants, usually along banks. People who bathe, play, or work in the watery area brush against these plants, and the larvae readily pass through their skin into the bloodstream. Depending which species of schistosome is involved (Schistosoma japonicum, S. haematobium, S. mekongi, S. mansoni, or S. intercalatum), the larvae make their way into the human liver, spleen, urinary tract, kidney, rectum, or colon, where they grow into worms. The worms many remain indefinitely, secreting their eggs, which the human then passes on into water supplies, repeating the cycle.8 As a crucial link in the life cycle of Schistosoma, snails have been the focus of the human elimination effort. Scientists discovered that the biological requirement of the snail population is relatively stringent. According to an authoritative large compendium on Schistosomiasis:

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Schistosomiasis and Capital Marxism Snails need relatively shallow water affording a good foothold, a good supply of vegetable food in the form of minute algae, and fresh or rotting vegetation, such as weeds, rushes, waterlilies, and Aponogetons. As a result of these prerequisites, snails are not found in areas where there is fasting-moving water or where the water is deep and is bounded by steep, bare banks.9

And, Being aquatic creatures avoiding bright light, snails cannot flourish in areas with too much water or no water at all. Both completely stagnant water and very swift water are unfavorable for snails.10 In China, the intermediate snail host carries the sporocysts of S. japonicum and releases the free-swimming cercariae into the water where the farmers wade. Due to the biological limits of the snail, the main river banks of the Yangtze or its tributary rivers used not to be suitable places for the snail on account of the swift current or tidal ebb and flow. In contrast, the land which lay between the tributary streams, canals and creeks was traditionally the endemic area. During the wet seasons this land became intersected by lakes, swamps, marshes and alluvial bottom land. This rich silt soil was easily watered during the rice growing season by natural and artificial canals.11 Nowadays, the ecological balance between the mainstream area and the backwaters has been altered by the construction of the Three Georges Dam. Building the Dam has significantly slowed the flow of the Yangtze, and its tidal ebb and flow have all but disappeared. The raising of the silt level, the increased percolation of the underground water and the implanting of alien vegetations in the Dam region made the mainstream area favorable to the flourishing of the snail species. Since I do not have adequate research material to rely on in order to detail the impact on the snail and schistosome population from the building of the Dam, lessons drawn from the building of the Egyptian Aswan High Dam can be extrapolated as a logical analogy. According to Garrett, there was scientific agreement that the enormous Aswan High Dam radically changed the ecology of the Nile, slowing the flow of the once uncontrolled river, preventing annual floods and creating the huge Lake Nasser. And those changes prompted shifts in the schistosome population from S. haematobium to S. mansoni.12 As Aburayeh describes: The slowness of water current and the increased salinity of water from increased percolation from underground water

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resulted in the greater spread of schistosomiasis mansoni south, and foci in Upper Egypt.13 In Egypt, the displacement of S. haematobium – which primarily attacked young children, mostly producing urinary tract disorders – by S. mansoni – which targeted young adults, causing often severe disorders of the spleen, liver, circulatory system, colon, and central nervous system – is a remarkable change directly related to the construction of the Aswan. According to Garrett, similar shifts in schistosome populations and human disease followed construction of the Sennar Dam in Sudan and the Akosombo Dam in Ghana.14 While it is impossible to speculate on the possible changes in the schistosome population or disease patterns associated with the Three Georges Dam, I would like to point out that the link between the Dam building and the spread of schistosomiasis is easily recognizable to environmentalists and scientists alike. That is to say, the revival of schistosomiasis in China was expected prior to the Dam construction rather than discovered afterwards. When the Chinese government decided to go ahead with the project, it actually chose to pay the price of thousands of lives for the completion of the Dam. When the government announced that up to one hundred million people were now subject to the risk of schistosomiasis infection, people should have been aware that the risk was imposed by the government itself. But the truth is, in most places, there was a general silence on the subject. The biblical alluvium of 1998 was a convenient scapegoat. Instead, the government has recently won accolades from the general public for its efforts in fighting the disease. 3.

Capital Marxism The case of schistosomiasis reflects a unique socio-political phenomenon that has adopted a shady but real form in today’s China, which I call “Capital Marxism.” In order to keep this article within a reasonable proportion, I will only give a sketch of what I mean by this term here. Yilu Zhao has made similar observations in her report for the New York Times, although she did not use the term “Capital Marxism.”15 The socio-political phenomenon denoted by “Capital Marxism” has two levels of representation. At the first level, Capital Marxism refers to a social reality and a political orientation that marries an authoritarian power structure to a statewide money making enterprise. In this case, Capital Marxism points to the fact that, despite capitalism, China still has a Marxist political mechanism that underpins the society’s daily discourses. China’s capitalism is a bona fide power capitalism that displays through its business transactions a straightforward authenticity that reflects the confidence and efficiency of power. In addition, China’s capitalism is essentially Marxian, and its newfangled economy unfolds in an ominous manner as predicted by Marx. In this sense, China’s capitalism is a Faustian experiment, with evil being embraced in order to save the soul of the good old Communists.

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Ever since Deng Xiaoping came to power in 1978, the ideology of class struggle of the ancien regime has been displaced by a new ideology of stability. Stability is promoted as the fundamental interest of the Chinese nation, and it is further construed as development in the economic sense. In order for China to survive, it needs to remain stable. The only way to maintain stability is for the country to develop its economy. Economic development is recognized as stability’s new consecrated meaning. The country could survive only if it develops; that is to say, only if it develops capitalism. Marxism nonetheless remains on the stage. Not only does the communist political structure remain intact, but also the Chinese understanding of capitalism remains unabashedly Marxian. According to Marxism, the capitalist development comes inevitably at the expense of the working class. In today’s China, at least among many intellectuals and the beneficiaries of the reform, it is semi-openly believed that exploiting the poor and sacrificing some people is not only inevitable but historically justified, as the country now embraces capitalism. The political and social elites of China remember the words of Marx: Accumulation for accumulation’s sake, production for production’s sake: by this formula classical economy expressed the historical mission of the bourgeoisie, and did not for a single instant deceive itself over the birth-throes of wealth. But what avails lamentation in the face of historical necessity?16 Leaders in China only need to read “classical economy” as Chinese economy, and “the bourgeoisie” as their new reformed ego. Under this rationale, there occurs in China a new socio-political drama that uses Marxism to support capitalism, or allows capitalism suckled by Marxism. In its official language, China calls Capital Marxism “socialism with Chinese characteristics” or “socialism at its early stage.” Although “socialism with Chinese characteristics” is clearly a misnomer (“capitalism with Chinese characteristics” is perhaps more accurate), it truthfully reflects the logic behind Capital Marxism. When Marx depicts the social and economic arrangements of a capitalist state, he wants to show that capitalism is in essence exploitive of the poor, and the class conflicts will lead to the advent of socialism through the workers’ revolution. According to Marx, socialism is inevitable because exploitation is inevitable. The capitalists have to exploit in order to survive, and in the end they will dig their own grave. Years of policy blunders and economic failures have forced the Chinese Communists to admit that socialism cannot be realized in China, and they must choose capitalism. By calling Chinese capitalism “socialism with Chinese characteristics” or “socialism at its early stage,” the Chinese Communists have killed two birds with one stone. On the one hand, they justify their

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continued monopoly of power by saying that socialism is still going to be realized in China, but only through practicing capitalism first. Since Marx says that capitalism will inevitably lead to socialism, Chinese Communists realize that they made a mistake in the past in rushing to socialism by skipping capitalism. Therefore, when China practices capitalism, it is still practicing socialism, only by a necessary detour. That is why Chinese capitalists are still supposed to be Marxists and Chinese capitalism is better to be named “socialism at its early stage.” On the other hand, by calling capitalism “the early phase of socialism,” the Chinese Communists think their exploitative policies justified by the grand Marxist logic of historical evolution. If exploitation leads to socialism, the Chinese Communists with capital must now exploit the Chinese Communists without capital. From an ideological point of view, “socialism with Chinese characteristics” reveals a curious historical twist in the thinking of Chinese Communism. If western capitalists exploit for the sake of profit, the Chinese capitalists exploit for the sake of ideological revolution. At least, this is the way they prefer to think of themselves, no matter how remote is it from the reality. Under this logically twisted mantra, it is hardly surprising that the state of Chinese capitalism looks to be the self-fulfilling prophecy of a Marxist. Many predictions of Marx concerning the future of capitalism have come true in China. Marx predicted that future capitalism would be centralized in terms of both political power and economic means of production; Chinese capitalism is largely managed from the top and the Communist party’s domination of the market is so strong that we have something like a centralized capitalism.17 Marx predicted that future capitalism would generate an enormous pool of unemployed labor and that the society will polarize into the rich and poor; China has laid off around thirty percent of its urban work forces and the gap between the rich and the poor is now the largest in the world, having surpassed India and the United States.18 Marx predicted that future capitalism would face a general glut of oversupply; China’s massive manufacturing machines running incessantly on cheap labor churn out so many products that the country has been mired in years of deflation.19 Marx observed that, given the colossal wastage in the capitalist economy, there would be a sharp rise in the price of raw materials; China’s ferocious appetite in that aspect has already pushed the world’s commodity prices to unprecedented historical levels.20 According to a recent issue of The Economist, China is already the world’s largest consumer of steel, copper, coal and cement, and the second biggest consumer of oil after America.21 Marx predicted that workers’ revolution would eventually bury capitalism and “the expropriators [would] be expropriated”; although it now looks unlikely that China will be buried in a future proletarian revolt, the social unrests carried out by over-exploited workers and peasants have become a mundane phenomenon in recent years.

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Just like every other generalizing term, the phrase “Capital Marxism” is necessarily simplifying and needs numerous qualifications in order to stay afloat and remain relevant to the complex reality of today’s China. In some sense, the term is perhaps more accurate to the first decade of the reform era than it is to now. First of all, Marxism as an ideological concept is genuinely fading away in today’s social discourse. Even the government is no longer keen on playing the blatantly incoherent “socialism at its early stage” sleight of hand. In contrast, the central leadership has become more and more pragmatic and less and less ideological. Due to a combination of factors, particularly the influence of international business and social cultures, the Chinese state apparatus has in recent years morphed into something rather like a Weberian bureaucracy, as opposed to a Kafkaesque castle of ideas. The fact that China’s political landscape is somehow denuding itself of the old Marxist rhetoric does not mean that Capital Marxism as a phenomenon belongs to memory. Capital Marxism as an institutionalized political economy is being dissolved because of the recent spectacular integration of the Chinese economy into the world economy, but Capital Marxism as an attitude lingers on in the Chinese social consciousness and functions a nebulous philosophical thought. Perhaps we have here an imperfect analogy with racism in the West. Although racism as a political institution is perhaps passé, it is still a live and relevant thought in social discourses. Capital Marxism is now more of a Weltanschauung influencing the social-political decision-makings than it is of an accurate portrait of the ever-changing reality. Capital Marxism as a Weltanschauung survives its ideological molting and becomes a particularly potent and sinister force. Its murmuration now sounds more innocent and convincing than it used to be while clad in ideological trappings. In a word, Capital Marxism represents two levels of a socio-political phenomenon in China. On the one hand, it represents a slowly out-of-focus reality of a political economy that is run by a group of ideologically dishonest Communists. On the other hand, it represents a social thought and a collective consciousness that influence not only the politically powerful but also the economically better positioned citizenry. As a Weltanschauung, Capital Marxism is fundamentally committed to the grand Marxist historicism and offers mere contempt to humanism and social justice. People are regarded as sheer instruments of history. The winners and the losers in a competitive economy are both pawns of historical forces. As a winner finds himself willynilly on the wining side, a loser loses, not because of the reluctant winner, but because of history. As a result, Chinese capitalism becomes lionized by a Marxian understanding of social lives that is stripped of its revolutionary sympathy for the poor and weak. This Weltanschauung of Capital Marxism explains not only the reckless power plays on the top, but also the apathy on the winning side of the citizenry towards social evils that affect the miserable.

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Under the umbrage of Capital Marxism, people see little beyond the struggle between the rich and poor, the powerful and weak. They think that the capitalist evil is unavoidable. What cannot be avoided, we must welcome. Capital Marxism turns Marx’s descriptions of capitalism into China’s political and economic prescriptions. If things in a capitalist society are as Marx describes, the people in China ought to realize them. The Chinese government constantly calls on its people to make sacrifices, puts the moral burden on them, and challenges them to endure ever increasing hardship for the good of the country. If capitalism needs power and energy, people in China would be selfish not to let their homes be inundated by a Dam. Deng Xiaoping once said, “Let some people get rich first;” he should have added, “some other people ought to get poor, if that’s what it takes.” The Chinese peasants used to be the heart and soul of Chinese communism, but they have suffered the most in the “early phase of socialism.” Many peasants have lapsed back into wretched poverty a decade into the reform era. They are bullied by their local cadres, robbed by their government, and sometimes sacrificed in flesh and blood to the new altar of Marxist Mammonism. Thousands of peasants living along the Yangtze will die from schistosomiasis. This is actually envisioned in the oracle of Marx, “[Capitalism] squanders human beings . . . squandering not only flesh and blood, but nerves and brains as well.”22 Perhaps, for the sake of this article, to the list shall we add livers and spleens?

Notes 1. Robertson. 2. McNeill, 106. 3. Abdullah Aburayah, Under-Secretary of State for Endemic Diseases of Egypt, “Keynote Address” at the Second International Conference on Health and Environment: Global Partners for Global Solutions, United Nations, New York, April 30, 1993. 4. “A Lady from China’s Past,” The National Geographic 145 (May, 1974), 663. 5. The phrase wen sheng (the god of plague) as a literary reference to schistosomiasis was made famous by Mao’s poem “Farewell the god of plague,” written in 1958. 6. Da Zhong Yi Xue Wang, March 26, 2004. 7. Faseng, et al. 8. Garrett, 203. 9. Warren, 91. 10. Ibid, 1089. 11. Robertson, 33. 12. Garrett, 204. 13. Aburayah.

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14. Garrett, 204. 15. Yilu Zhao, “Class Consciousness; China’s Wealthy Live by a Creed: Hobbes and Darwin, Meet Marx,” New York Times, 29 February 2004. I thank Steve Galovich for directing my attention to the report. 16. Marx, Capital, 1:595. 17. Ibid, 1:592 ff.; 3:194 ff. 18. Marx, Communist Manifesto, 36-38. 19. Karl Marx, Capital, 1:87; 2:545-546. 20. Ibid, vol. 3, 202-203. 21. “The Dragon and the Eagle,” The Economist, 2-8 October 2004. 22. Marx, Capital, 3:182.

Bibliography Faseng, Shu et al. “The social factors behind the spread of schistosomiasis in the Three Georges Dam region.” Shi Yong Ji Sheng Chong Za Zhi, II, 7 (1999). Garrett, Laurie. The Coming Plague. New York: Penguin, 1994. McNeil, William. Plagues and Peoples. New York: Anchor Books, 1977. Marx, Karl. Capital, trans. Ben Fowkes. New York: Penguin, 1963. Marx, Karl. Communist Manifesto, trans. A.J.P. Taylor. Chicago: Gateway, 1954. Robertson, R. G. “Schistosomiasis in the Shanghai region.” China Journal (1922): 28-38. Warren, Kenneth S. ed. Schistosomiasis: The Evolution of a Medical Literature, 1852-1972. Boston, MA: MIT Press, 1973.

Chapter 9 The Inevitable Impunity of Suicide Terrorists Elena A. Baylis [T]he use of legal action to deal with terrorism led to the belief that the U.S. was unprepared to defend itself vigorously, and could therefore be attacked with relative impunity. . . . President Bush has repeated the promise “to bring terrorists to justice.” But he means Texas justice. . . . The notion that criminal prosecution could bring a terrorist group like Al Qaeda to justice is absurd.1 In the aftermath of the September 11th terrorist attacks, the United States declared itself “at war”2 with terrorism. The failure of previous counter-terrorism measures to prevent the attacks catalyzed sweeping changes in law and policy.3 A rich public discussion has developed about these measures, their effectiveness in promoting security, and the consequences for civil liberties and for the legal system as a whole.4 Amidst this discussion, one fundamental reality has been ignored: the impunity of the September 11th suicide terrorists. The suicide terrorist robs the hangman, and so in his own individual case justice has not been, and cannot be, done. Because it is obvious that suicide terrorists cannot be tried and punished for their crimes, this fact is often brushed aside. But although it is obvious, it is not incidental. Rather, the inevitability of suicidal impunity seems to epitomize and substantiate the claim that the legal system is unable to offer justice for this “new brand of terrorism”5 at all. Does the image of suicidal impunity signify a real legal failure in the face of terrorism? There are two broad categories of concerns that have been raised in the debate over counter-terrorism laws: that the legal system cannot effectively deter or redress terrorism, and that in changing the law in an effort to make it effective against terrorism we risk undermining civil liberties and due process guarantees that are foundational to our system. In considering how suicidal impunity affects these concerns, there are a few crucial facts about the identity and operation of modern suicide terrorists that must be kept in mind from the outset. Suicide terrorism has virtually always been carried out by organizations rather than individuals, complicating the issue of impunity. Also, those organizations have virtually always been nationalist groups fighting for independence, so that suicide terrorists could be expected to appeal to their corresponding nationalist constituencies for support.6 And finally, these historical facts are now up for grabs, as Al Qaeda’s highly publicized attacks and the powerful coercive effect of suicide terrorism have popularized and transformed the use of the tactic, and thus also the problem of suicidal impunity.7

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What is Suicide Terrorism? Terrorists use violence against a few victims as an expressive medium to convey fear to many more, and through that fear to attack an entire community. In ordinary terrorism, the medium of that message is the physical damage to the bodies and property of the victims. In suicide terrorism, the medium is the body of the terrorist as well, and in addition, her willingness to die. Beyond these general principles, the definition of terrorism is highly contested. While all agree that terrorism uses violence expressively and for its consequential effect rather than solely for its immediate destructive capacity, there is disagreement over the terrorists’ motivation (must it be political?), the intended victims (must they be civilians?) and the nature of the act (must there be actual violence, or will mere threats suffice?).8 Critics challenge the categorization of acts as terrorism at all, arguing that no set of objective criteria can be devised that can distinguish “terrorist” acts from non-terrorist categories of violence, such as crime, war, and use of force in law enforcement. They contend that the inability to settle on a concrete definition reflects the pejorative, nondescriptive nature of the term.9 These contrasts and contradictions, however, do not obliterate the category of terrorism, but rather, themselves define it. First, they draw our attention to the fact that terrorism is not a specific act, but a category of acts. As such, it shares motives, tactics, and other functional characteristics with other broad categories of violence, such as crime and war. But terrorism does not have to be an exclusive category in order to be a cognizable one. The considerable overlap between the category of terrorism and the categories of crime, war, and protest does mean that a state has considerable discretion in deciding whether to label an act or organization as terrorist. “Terrorist” is after all not a name that people give themselves, but a word that a victim community uses to describe its attackers. Defining terrorism, therefore, can be understood not as a descriptive, but as a prescriptive act that serves to signal and justify the state’s intent to respond with extraordinary counterterrorist measures, whether legal, military or covert. The definition of “suicide terrorism” is also a matter of considerable disagreement. A broad definition of suicide terrorism would include acts in which the terrorist has a high risk but by no means a certainty of being killed, either in carrying out the attack or immediately afterward, and also cases in which the terrorist is willing to kill himself to evade capture. But for purposes of this paper, I will focus upon those instances in which the attacker’s suicide is the very means of attack, ensuring the terrorist’s impunity from recourse of any kind, including legal recourse.10 Even the term “suicide terrorism” is controversial. Some victims have expressed a preference for the terms “genocide bombings” or “homicide attacks,” while some organizations that use suicide attacks refer to them as “martyrdom operations.”11 I will use the phrases “suicide terrorism” and

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“suicide attacks,” as these are the most frequently used and most neutral terms that effectively distinguish these acts from other acts of terrorism. 2.

Deterrence It is notoriously difficult to prevent acts of terrorism.12 Law enforcement agencies have had limited success in infiltrating terrorist networks and gathering intelligence about their activities. These networks are often organized in decentralized, cell-based structures that are difficult to disrupt and that evolve in response to attempts at interdiction.13 Many of the preliminary acts leading up to a terrorist attack may in themselves be legal and may not present a basis for arrest,14 the potential targets for terrorist attack are numerous and weapons and bomb ingredients are readily available,15 and if terrorists are located outside the U.S. then any prevention activities will require coordination with and cooperation from foreign governments.16 In light of the difficulties of interdiction, some commentators emphasize the importance of pursuing alternative measures, such as blocking recruiting, community support, and weapons acquisition, rather than relying on law enforcement.17 In this context, suicide terrorists present a formidable image of absolute undeterrability. In a panel discussion on the Patriot Act, U.S. Representative Barney Frank summed up the deterrence problem in his usual inimical style: “Much of what law enforcement relies on is deterrence, and deterrence means that in many cases there is a very high probability that if you attempt this you may succeed but we'll catch you and we may kill you in the bargain.” But far from being fearful of punishment, the suicide terrorist embraces the most extreme punishment the law can devise: death. Barney Frank again offered a pithy assessment of the problem: “There are mature thoughtful adults prepared to kill themselves and that's a qualitatively more challenging problem for law enforcement.”18 Indeed, some have suggested that the immunity of the suicide terrorist to deterrence represents not merely a greater challenge for law enforcement, but the law’s abject inability to prevent suicide terrorism. In his statement to the 9/11 commission, Magnus Ranstorp emphasized this point: “Above all, the September 11th [attacks] demonstrated that we stand almost impotent in preventing and detecting terrorists with a suicidal mindset becoming human airborne missiles[,] magnifying our collective sense of vulnerability.”19 But on another level, suicidal undeterrability is not so absolute as it first appears to be. The inevitable impunity of the individual terrorist who kills himself in his attack should not be conflated with the far from inevitable impunity of the others who organize, plan, and contribute to that attack. For suicide attacks are virtually always carried out by organizations, not by individuals.20 According to Robert Pape’s study of suicide terrorism between 1980 and 2001, 185 of the 188 suicide attacks that occurred worldwide during

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that period were carried out by a terrorist organization, and not by an individual terrorist acting alone.21 Indeed, suicide terrorism is better understood as an organizational strategy, not as an individual one. While suicide may be an irrational act for any given individual, it is perfectly rational as an organizational tactic. Under a simple cost-benefit analysis, suicide attacks tend to cause more casualties and to create more public horror and media coverage than conventional terrorist acts, while costing less, being more likely to succeed, and being simpler logistically. While the planning of a suicide attack may be elaborate and require a network of support, the materials for a small bomb are inexpensive, the attacker is able to get close to the target and detonate at the optimal time, there is no need to plan an escape route, and there is less risk of arrest and potential divulgence of information about the organization. Particularly when working against closely guarded military or political targets, the suicide attacker has a greater chance of success than a conventional terrorist.22 The organizational basis of suicide terrorism has important implications for the problem of deterrence. First and foremost, because suicide terrorists are virtually always deployed by organizations rather than acting on their own initiative, it is not solely the suicide terrorists themselves that we need to deter, but the organizations that control them. The consequences are significant: although suicide terrorists cannot be tried and punished under the law, the planners and leaders of terrorist organizations and cells can be. Although suicide terrorists are unlikely to be deterred by threat of punishment, the planners and leaders of terrorist organizations and cells may be. In this regard, it is significant that often the planners and leaders in these organizations are not themselves volunteering for suicide missions, but are sending others out to die for them, one more set of expendable resources necessary to carry out the organizations’ plots.23 While the suicide terrorists themselves necessarily die in the course of the terrorist act, the planners do not; while the suicide terrorists themselves may be willing to die for their cause, the leaders who send them out for this task may not be at all eager to join them in their fate.24 Note, for example, the role that Khalid Sheikh Muhammed planned for himself in his original version of the September 11th plot: nine planes were to crash, and his alone was to land safely so that he could make a statement to the news media.25 And in at least one instance, the arrest and threatened execution of an organization’s leader actually ended the use of suicide terrorism by that organization. Arrested, convicted, and faced with the death penalty, Abdullah Ocalan, the leader of the Workers Party of Kurdistan (the “PKK”) in Turkey, ordered the organization to stop its ongoing wave of suicide attacks in an attempt to save his own neck. On his order, the PKK stopped.26 Of course, the mere fact that all members of a terrorist organization are not themselves intent on suicide does not mean that they can be readily

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deterred. The difficulties of interdiction discussed above suggest that while suicide terrorists may represent an extreme in their willingness to die for their cause, other members of the organization are unlikely to be daunted by the relatively remote risk of capture and punishment. Furthermore, even if leaders and planners can be targeted for deterrence or punishment, organizations such as Al Qaeda, with a decentralized cell based structure, are likely to survive attempts at decapitation. Even in organizations with more centralized leadership structures, the leaders and planners are often difficult to identify and locate, much less to arrest and try. Indeed, the long history of efforts to use the criminal law to address organized crime and other criminal conspiracies reveals that it is a demanding and difficult process. The ultimate success of imposing criminal sanctions on members of a complex organization as a strategy for undermining the organization as a whole is far from guaranteed. While deterring and punishing organizers, leaders, and planners are not easy tasks, this is not part of the legacy of suicidal impunity. Rather, these difficulties relate to the structure and sophistication of particular terrorist organizations, rather than to the suicidal determination of individual members. In this sense, while suicidal impunity should not be conflated with imagined impunity for all concerned with their cause, the suicidal resolve of some members may serve to strengthen the determination of others in the organization. It certainly serves to signal that resolve to the organization’s targets, and thus serves as an additional weapon in the terrorist arms cache. But there is an additional wrinkle. Since the studies demonstrating suicide terrorism’s foundation in organizations were completed, Al Qaeda has popularized the suicide terrorism tactic to such a degree that hundreds of additional suicide attacks have been carried out, in settings as diverse as Uzbekistan, the Phillippines, Afghanistan and Iraq.27 The contours of suicide terrorism are no longer as clear as they once were, and so the potential for deterrence is not either. Perhaps some of these new attacks have been carried out by individuals responding to the call for global jihad, rather than by organizations. If so, then we truly will be faced with the problem of deterring or interdicting the suicide terrorists themselves. Nonetheless, the most daunting problem of suicidal impunity may be, not that suicide terrorists cannot be deterred, but that we believe they cannot be and respond accordingly. Terrorists do their damage not just through immediate physical harm, but through the fear of future harm. In order to propagate this fear, the terrorist must persuade his victims that he is not deterrable, that the state will not be able to prevent him from striking again. One cost of suicidal impunity, then, is the harm done by our perception, accurate or not, that suicide terrorists are undeterrable. That belief fosters a fear of and responsiveness to terrorist action that is exactly the terrorists’ goal.

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Redress Suicidal impunity poses another real cost by undermining the ability of the legal system to punish the immediate perpetrators and thereby mitigate public fear and resolve public anger over terrorist attacks. Criminal justice is, after all, not just preventative but retributive and cathartic, substituting the punishment of the state for the urge for private revenge. We have not had the chance to punish the suicide terrorists, and this failure of justice allows the thirst for revenge to grow unslaked.28 Trials also serve to fulfill the public need to understand catastrophic, violent social events like acts of terrorism. In the process of charging and trying a defendant, the state is compelled to investigate and detail in public hearings what actually occurred, how, and why. Beyond this, trials offer a public drama, a spectacle and thus a focal point for public emotion and for creation of a common meaning for the common tragedy that has occurred.29 In contrast to the post-9/11 evocation of the image of a “war on terror,” calls for justice were the touchstone of the response to the Oklahoma City bombing in 1995, and the eventual trial of Timothy McVeigh was a dramatic media event. Within a day of the attack, President Clinton issued an official statement assuring the public, “We will find the people who did this. When we do, justice will be swift, certain and severe.” Attorney General Reno echoed him, declaring that “The F.B.I. and the law-enforcement community will pursue every lead and use every possible resource to bring the people responsible to justice.” She repeatedly asserted her intent to seek the death penalty against the bombers under federal criminal law, and this assertion was quoted in the press as a measure of her seriousness.30 When the trial was set to begin, the victims and their families sued for the right to observe Timothy McVeigh’s trial, saying that they wanted “to know why,” and that “hearing all the evidence . . . will enable us to go on with our lives.”31 Of course, trials serve the needs for understanding and resolution imperfectly at best: they tend to have only limited opportunities, if any, for victim participation, victims and the larger public may not be satisfied that the trial succeeded in uncovering the truth,32 and they may take a long time to come to fruition.33 The process of public narrative and judgment can be painful or frustrating rather than satisfying.34 Furthermore, there are risks associated with placing terrorists on public trial. Trials provide an opportunity for all sides to tell their story, and the terrorist’s narrative may not be one that the government wishes to have publicly told. Richard Reid, for example, used his sentencing hearing as a platform to denounce the United States and the court.35 From the terrorist’s perspective, then, either impunity or trial can serve the function of expressing contempt for the legal system and its sanctions. Nonetheless, trials serve as the symbol of American justice, and suicidal impunity has denied us the opportunity to try the September 11th hijackers. But as with the problem of deterrence, this impunity applies only

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to the immediate hijackers. There are others within suicide terrorist organizations who could be tried for the attacks, leaders and planners such as Khalid Sheikh Muhammed, who are already in U.S. custody. Those who are most closely tied to the attacks have not been brought to trial, but like the difficulties of interdicting leaders and planners in the first place, this is not a problem of suicidal impunity. There are also models, such as South Africa’s Truth and Reconciliation Commission, that suggest that other kinds of public hearings offer another means for the public to address nationwide catastrophes like apartheid, genocide, and here, terrorism. The 9/11 commission has played this role to some extent. The commission’s report of course is not a complete accounting of the attacks and their effects, and while it sought and achieved great publicity, its process was not entirely public. More fundamentally, it was a congressional organ with the ultimate purpose of proposing government reform, rather than an independent body with the purpose of exploring the event itself or the culpability of the perpetrators. In spite of its limitations, the 9/11 commission took steps toward mitigating at least one aspect of the failure of law to address suicide terrorism by filling the need for public explanation and understanding with its narrative report and extensive conclusions and recommendations. Whatever the risks and limits of public trials and hearings, in the absence of the opportunity for trials of the suicide terrorists, some victims have pressed for other legal processes to achieve those goals. Some victims have filed lawsuits against the airlines and those they believe financed the attacks, in spite of the money offered by the September 11th compensation fund for victims who waive their rights to sue the airlines. Testifying against legislation that would have further limited September 11th victims’ rights to bring suits in exchange for government compensation, an attorney for some of the victims argued: Instead of addressing the moral and the legal right of the victims, and indeed of all Americans to know the details regarding the perpetrators and circumstances of the atrocity, it would cover them up as a way of achieving a political compromise. . . . They do not want a noquestions-asked instrument. They want a mechanism suited to discovering the truth.36 The loss of the public spectacle, explanation and retribution that would have been provided by trials of the September 11th hijackers is therefore a cost of suicidal impunity. This immediate cost, however, is limited to the immediate hijackers and might be mitigated by trying other members of their organizations or by public hearings along the lines of the 9/11 commission. The ultimate reach of suicidal impunity within the legal system depends to no small degree on what we ourselves make of this failure of

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justice. The state has many mechanisms available to it to redress terrorist attacks and reassert its hegemony, ranging from the legal to the military to the covert. Trials in particular offer an opportunity for the state to publicly dominate and subdue the accused. The United States has thus far chosen to make only limited use of the legal system by prosecuting only peripheral figures – Moussaoui, Lindh, Reid – and holding the primary figures like Khalid Sheikh Mohammed in secret. 4.

Systemic Changes Suicidal impunity does not itself compel any particular changes to the law. But the perception that justice has not been done and that suicide terrorists cannot be adequately deterred may provide the underpinning for arguments that the legal system is not capable of effectively addressing terrorism, or that reductions in civil liberties and due process guarantees are necessary to enable it to do so. As discussed above, the law may extend responsibility from the immediate suicide terrorists, who have impunity, to the planners and other participants in a terrorist act. But blame may also be shifted not to the most culpable party, but to the most available one.37 Under the double pressure of suicidal impunity and the difficulty of brining the principals in terrorist organizations to justice, there is the risk that blame will be shifted not on the basis of individual guilt, but on the basis of tenuous associations verging on collective blame.38 In the context of suicide terrorism, collective blame poses particular risks, because of the relationship of terrorists to supporting communities and the effect of collective blame upon those communities. Whereas conventional terrorist attacks are carried out by all kinds of groups pursuing all kinds of agendas, modern suicide terrorist attacks have been carried out almost exclusively by nationalist groups fighting wars for independence, primarily the LTTE or Tamil Tigers in Sri Lanka, Hezbollah in Lebanon, Hamas, Islamic Jihad, and other Palestinian organizations in Israel, the PKK, Chechen rebels seeking independence from Russia, and fighters in Kashmir seeking independence from India.39 As a result of their nationalist agenda, these organizations have been consistently rooted in communities who may support their goals of independence, whether or not they support their tactics.40 Unless the state’s attacks (whether legal or military) on such terrorist organizations are extremely carefully targeted, a disproportionate share of those attacks will fall on the corresponding national communities as well. As that community bears the cost of any collective legal or violent action by the state, the state seems to demonstrate the truth of the terrorists’ claims of state oppression, spurring support for the terrorists and catalyzing fresh acts of revenge.41 The exception to this pattern is Al Qaeda and its progeny. While it carries on a long-term campaign of violence directed at a foreign enemy, Al Qaeda does not have a primarily nationalist agenda or aspirations to statehood.42 Al Qaeda, a diffuse organization spread across several

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continents, has adopted the strategy of home-grown nationalists and put it to the ends of changing U.S. foreign policy and establishing Islamic authority rather than the concrete demand of territorial statehood.43 But the general underlying principle holds nonetheless: like nationalist organizations, Al Qaeda is rooted in a particular community, but one defined by religion and a sense of victimization by U.S. policies. Forms of assessing blame that focus on this community, without carefully distinguishing those who are involved in terrorist activity from those who are not, run the same risk of consolidating community support behind Al Qaeda and the organizations it has inspired. Indeed, in addition to convincing the terrorists’ constituent communities of the hostility of the state to them, this result would perpetuate the very dynamic that the terrorist organization understood to be at work all along: retaliation on the basis of collective blame.44 In the dynamic of terrorism and counter-terrorism, terrorists never believe themselves to be striking the first blow. Rather, their attacks are designed and understood as collective reprisals for wrongs originally committed by the oppressive government or occupying force against their community.45 According to this theory, all members of the community are collectively guilty for the wrongful actions of the community’s leaders, and so any can justifiably be targeted for violence. If the state targets its attacks on – or tolerates substantial collateral damage to – the terrorist’s constituent community, it will be perceived by that community as adopting that principle.46 As victims of a collective attack, that community is then likely to tolerate collective attacks by the terrorist organization as well. Pape describes the interplay of violence based in collective blame as a pattern of “retaliation, a tit-for-tat interaction that generally occurs between terrorists and the defending government.”47 Others have noted the prevalence of such patterns in ordinary crime and in conventional terrorism: Rene Girard describes this as cycles of vengeance,48 while Michael Ignatieff calls it an “escalatory spiral” of violence.49 If the law is seen as just another weapon used collectively against the community, rather than being targeted against individual wrongdoers, it may become just another reprisal in the cycle of violence as well. Of course, the impunity of suicide terrorists does not itself create tendencies toward more extensive use of executive and law enforcement power or the tendency for that power to be misused, either deliberately or inadvertently. Nor does the impetus toward collective blame of members of the terrorists’ religious or national communities originate in the problem of impunity. These tendencies can be seen in counter-terrorist policies in all kinds of settings, historical and current. Rather, the specter of suicidal impunity catalyzes and energizes these pre-existing tendencies with the urgency of perceived injustice: if someone cannot be found to blame, then no one will be called to account at all. While there is an appropriate legal remedy to suicidal impunity – trying and punishing the immediate collaborators of the suicide terrorists – the

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impetus created by suicidal impunity enhances the risk that we will blame not the most culpable parties, but those most readily available to be blamed. 5.

Conclusion Suicidal impunity challenges the hegemony of the law, just as the terrorist act itself challenges the hegemony of the state. The impunity of the suicide terrorist symbolizes his desire to be seen as determined and undeterrable, as well as his contempt for the legal system and its sanctions. But this impunity is not absolute. It does not extend to the organizations in which most suicide terrorists are based, and its impact can be mitigated by directing the law at those organizations. But in so doing, we run a further risk: that of allowing our anger at impunity to tempt us into engaging in the easier task of collective blame rather than the harder one of measured, individual legal process and judgment.

Notes 1. Abraham D. Sofaer, “Statement of Abraham D. Sofaer to the National Commission on Terrorist Attacks Upon the United States,” First Public Hearing of the National Commission on Terrorist Attacks Upon the United States, 31 March 2003, (14 May 2004). . 2. U.S. Congress, Public Law 107-39, Sense of Congress Regarding Terrorist Attacks, 107th Cong., 1st sess., 20 September 2001. 3. U.S. Congress, Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act), 107th Cong., 1st sess., 26 October 2001. 4. See Heymann; Ignatieff. 5. Heymann, 73. 6. Pape, 2-6. 7. “Uzbekistan: New Suicide Attacks Target Police, U.S. and Israel Embassies,” Muslim Uzbekistan, 30 July 2004, (9 November 2004). ; “American Killed in Afghan Suicide Attack,” msbnc.com, 21 October 2004, (9 November 2004). ; “Phillippine blast ‘suicide attack,’” CNN.com, 10 October 2002, (9 November 2004). .

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8. The Patriot Act amended U.S. federal criminal law to include a definition of domestic terrorism that focused on two elements: a criminal threat to human life, and the apparent intent to coerce the public or the government. 18 U.S.C. § 2331(5). However, the U.S. State Department uses an alternative definition, requiring that an act be “premeditated politically motivated violence perpetrated against noncombatant targets by sub-national groups or clandestine agents, usually intended to influence an audience.” 22 U.S.C. § 2656f(d). Wayman Mullins identifies over 100 different definitions of terrorism. Mullins, 15. 9. Zulaika and Douglass, 98 (“It is not simply that, like “Communist” or “fascist,” the word “terrorist” is being abused; rather the word itself is an abuse, a banality that disguises reality while impoverishing language and thought by obliterating distinctions.”); Jenkins, 17-33. The phrase most frequently used to express one aspect of this dilemma is “one man’s terrorist is another man’s freedom fighter.” And indeed, organizations deemed terrorist when in opposition, such as the Palestine Liberation Organization or the African National Congress, have been recognized as legitimate governments once in power. 10. Yoram Schweitzer, “Suicide Terrorism: Development and Main Characteristics,” in Countering Suicide Terrorism, 77-78; Crenshaw, Martha. “‘Suicide’ Terrorism in Comparative Perspective,” in ibid, 21-29. It should be noted, however, that suicide in the course of acts of terrorism and suicide to avoid capture or by way of protest are certainly not exclusive tactics: the Liberation Tigers of Tamil Eelam, who have carried out the most suicide attacks in the modern era, also carry cyanide tablets to kill themselves in case of capture. Dr. Rohan Gunaratna, “Suicide Terrorism in Sri Lanka and India,” in ibid, 101-108. Members of the Workers’ Party of Kurdistan in Turkey have conducted hunger strikes and set themselves on fire, and have also carried out numerous suicide bombings Dogu Ergil,“Suicide Terrorism in Turkey: The Workers’ Party of Kurdistan,” in ibid, 118-20. 11. Audrey Kurth Cronin, “Terrorists and Suicide Attacks,” CRS Report for Congress (The Congressional Research Service, Library of Congress: CRS-2, 28 August 2003). 12. Mullins, 358-77. 13. Stern, 27-40. 14. Panel Discussion, 1508 (Statement by Beth Wilkinson). 15. Atran, 1535. 16. Mullins, 360-61. 17. Stern, 38-40. 18. Panel Discussion, 1511 (Statement by Barney Frank).

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19. Magnus Ranstorp, “Statement of Magnus Ranstorp to the National Commission on Terrorist Attacks Upon the United States,” First Public Hearing of the National Commission on Terrorist Attacks Upon the United States, 31 March 2003, (14 May 2004). http://www. 9-11commission.gov/hearings/hearing/witness_ranstorp.htm>. 20. Atran, 1537-38. 21. It was not possible to ascertain whether an individual or an organization was responsible for the remaining three incidents. Pape, 18. 22. Sprinzak, ¶ 4. 23. Atran, 1537. 24. Sprinzak, ¶ 9 (“Since suicide terrorism is an organizational phenomenon, the struggle against it cannot be conducted on an individual level. Although profiling suicide bombers may be a fascinating academic challenge, it is less relevant in the realworld struggle against them than understanding the modus operandi and mind-set of terrorist leaders who would never consider killing themselves, but opt for suicide terrorism as a result of cold reasoning.”). 25. “The 9-11 Commission Report: Final Report of the National Commission on Terrorist Attacks Against the United States,” 154. <www.gpoaccess.gov/911/>. 26. Ergil, 124. 27. See note 7, above. 28. See, e.g., Girard. 29. Martha Merril Umphrey provides an interesting discussion of the construction of legal meaning in spectacular trials in “The Dialogics of Legal Meaning.” 30. “Terror in Oklahoma City: Official Response; Statements by the President and Attorney General,” New York Times, 20 April 1995, B3. John Kifner, “Terror in Oklahoma City: The Overview – At Least 31 Are Dead, Scores Are Missing after Car Bomb Attack in Oklahoma City Wrecks 9-story Federal Office Building,” New York Times, 20 April 1995, A1. 31. Tony Clark, “Hearing Begins over Trial Site for Oklahoma City Bombing Suspects,” CNN News (30 January 1996). . Tony Clark, “Judge Mulls over Moving Bomb Trial,” CNN News (12 December 1995). (“Many of the victims’ families, as well as survivors of the explosion, want to be able to attend the trial. . . . What they hope to get out of it is a way to deal with their anger. If these are indeed the people who blew up the building, they want to know what their motives were.”).

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32. Reeval Alderson, Lockerbie: A Long Search for the Truth, BBC News (14 March 2002). (“Whilst most of the American relatives would agree that the man convicted of the bombing did it, among the British relatives, there's considerably more disquiet. . . . Bill Cadman’s father, Martin, said: ‘I was certainly cynical right from the start. . . . The trial has got in the way of the truth.’”); James Cook and Murray Cox, Relative’s doubts over Lockerbie Case, BBC News (15 October 2001). (“The sister of a victim of the Lockerbie bombing has said she is ‘not convinced’ the man convicted of it carried out the attack.”). 33. This has been presented as an argument in favor of military tribunals, which are presumed to be able to act more quickly. In the event, the plans to try prisoners at Guantanamo have been notoriously laggard. 34. Tyler and Thorisdottir, 380. 35. “Exchange between Reid, judge follows life sentence,” CNN.com, 6 December 2003, (10 November 2004). <www.cnn.com/2003/LAW/01/30/shoebomber.sentencing/>. 36. Hearing before the U.S. Senate Committee on Foreign Relations, Benefits to U.S. Victims of International Terrorism, 108th Cong., 1st sess., 17 July 2003. 37. Feigenson, 971. Some studies suggest that if the primary culpable party in a case cannot be brought to trial, jurors tend to displace their anger – both at the harm done and at this frustration of the urge for revenge – upon a defendant who is plausibly but secondarily connected to the act, and most importantly, available to be blamed and punished. Feigenson also describes an “appraisal tendency,” the tendency to use an emotion that one has been feeling in unrelated perceptions and judgments, so that the experience of anger tends to make jurors more willing to believe that someone has done something wrong. Ibid, 969-70. 38. The Patriot Act’s provisions criminalizing material support for designated terrorist organizations, for example, have been criticized as punishing defendants for their association with those organizations, rather than their intent to support terrorism. Cole, 58-64. The federal courts are split on the question of whether these provisions offer due process to criminal defendants. United States v Rahmani, 209 F. Supp. 2d 1045 (C.D. Cal. 2002); United States v Sattar, 272 F. Supp. 2d 348 (S.D.N.Y. 2003). 39. Pape, 6. 40. Ibid, 7. 41. Atran, 1538.

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42. Pape includes Al Qaeda in the nationalist category, focusing on Al Qaeda’s concern with U.S. involvement in Saudi Arabia, but it seems to me that this analysis focuses on only one of the organization’s goals and is not the equivalent of a purely nationalist or separatist agenda. Pape, 7; 9/11 Commission report 51 (describing Bin Laden’s stated motives as being the U.S. government’s support for other countries’ attacks on Muslims and the immorality of American society, his stated aims for the U.S. to abandon that support, withdraw from the Middle East and convert to Islam). 43. This example seems to be having some effect, as other organizations with broader goals now may be taking up suicide terrorist tactics as well. “Uzbek Guard dies from injuries in suicide attack on U.S. Embassy, bringing death toll to 7,” Boston Herald, 3 August 2004.. 44. Collective blame is a common principle among terrorist organizations, except perhaps, those few who limit themselves to assassinations of those they view as individually responsible. For example, the Lehi movement for an Israeli state (a nationalist, although not a suicide terrorist movement) when fighting against the British collectively blamed and regarded as appropriate targets all British in the territory: “Everyone is responsible. Every soldier, every policeman. Every clerk, from the least to the most important. From the post office clerk to the Prime Minister. That is the law of the enemy. Their responsibility is collective because their interests are collective, because their decisions are collective and because the execution of them is collective.” Cromer, 15-16. 45. Again, the Lehi movement provides an example of a nationalist organization that expressly stated this view. Ibid, 15. 46. Even if it does not intend to do so, it may well be perceived as doing so in light of the difficulty of narrowly targeting and limiting damage cased by military attacks. 47. Pape, 4. 48. Girard, 17-21. 49. Iganatieff, 62.

Bibliography Atran, Scott. “Genesis of Suicide Terrorism.” Social Science Review 299 (7 March 2003): 1534-1539. Cole, David. Enemy Aliens. New York: The New Press, 2003. Countering Suicide Terrorism. New York, NY: Anti-Defamation League, 2001.

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Cromer, Gerald. Narratives of Violence. Aldershot, Hampshire, U.K.: Ashgate Publishing Group, 2001. Feigenson, Neil R. “Risk Perceptions and Blaming in 9/11 Cases.” Brooklyn Law Review 68 (2003): 959-1001. Girard, René. Violence and the Sacred, trans. Patrick Gregory. Baltimore: The Johns Hopkins University Press, 1979. Heymann, Philip B. “Civil Liberties and Human Rights in the Aftermath of September 11th.” Harvard Journal of Law and Public Policy 25 (2002): 441-56. Ignatieff, Michael. The Lesser Evil. Princeton, New Jersey: Princeton University Press, 2003. Jenkins, Philip. Images of Terror. New York: Walter de Gruyter, 2003. Mullins, Wayman C. A Sourcebook on Domestic and International Terrorism. Springfield, Ill: C.C. Thomas, 2d ed. 1997. Panel Discussion. “The USA-PATRIOT Act and the American Response to Terror: Can We Protect Civil Liberties after September 11?” American Criminal Law Review 39 (2002): 1501-33. Pape, Robert A. “The Strategic Logic of Suicide Terrorism.” American Political Science Review 97:3 (August 2003): 1-19. Sprinzak, Ehud. “Rational Fanatics.” Foreign Policy (Sept./Oct. 2000), 66-73. Stern, Jessica. “The Protean Enemy.” Foreign Affairs, July 2003, 27-40. Tyler, Tom R. and Hulda Thorisdottir, “A Psychological Perspective on Compensation for Harm: Examining the September 11th Victim Compensation Fund.” DePaul Law Review 53 (2003): 355-91. Umphrey, Martha Merril. “The Dialogics of Legal Meaning.” Law and Society Review 33 (1999), 393-423. Zulaika, Joseba and William A. Douglass, Terror and Taboo: The Follies, Fables, and Faces of Terrorism. New York, NY: Routledge, 1996).

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Chapter 10 The Lessons of Nuremberg and the Trial of Saddam Hussein Douglas J. Sylvester Law’s engagement with evil is nowhere as evident as in the trials of history’s brutal dictators, thugs, and war criminals. The imaginative range of law’s response to such evil may be ably captured by reviewing the major international atrocity trials of the last half-century. And indeed, international law scholars have long been interested in assessing the impact and import of such trials. In legal circles, these trials (and Nuremberg in particular) have achieved somewhat mythical status. Often praised for their commitment to the substantive criminalisation and de-politicisation of mass-crimes, they are also subject to academic panegyrics for their perceived commitment to the principle that all trials, regardless of defendant or circumstance, must be “fair” and conducted with “due process.” In and of itself, this commitment appears uncontroversial – but in the context of mass-crime trials such as those used in the prosecutions of Nazi war criminals and, of late, the murderers of Yugoslavia and Rwanda, the unquestioning commitment to a defendant’s due process rights is not without its costs. Much of the current fêting may be traced to the unqualified, and in places quixotic, adoption of the Nuremberg Principles by the United Nations in 1946 and again in 1950. Although largely superseded today by more specific and legally binding conventions and treaties, the Principles have influenced the direction of international law with regard to criminal prosecutions. One claim in particular has been universally embraced by the international legal community – that “[a]ny person charged with a crime under international law has the right to a fair trial on the facts and law.”1 Numerous commentators have, since Nuremberg and with increasing regularity in the last few decades, proudly proclaimed that Nuremberg “established a legacy of fairness and due process in international tribunals.”2 This triumphalist narrative belies a far more complicated picture about the place of Nuremberg in criminal justice and, in particular, its acceptability as a fair trial at the time it was adopted. Indeed, at the time of its creation, the trial was criticised by scholars as “dangerous,” “a sham,” or, in the case of Supreme Court Justice Harlan Fiske Stone, a “high-grade lynching affair . . . under the pretence [of] a court and proceedings.”3 Prior to and during the trials, commentators argued that the tribunal would be little more than an opportunity for Nazi propagandizing. Others were deeply concerned that Nuremberg, representing little more than victor’s justice, would inflame public passions against the judges rather than the defendants. Finally, others believed it dangerous to call something a “trial” that would not comport with the basic standards of fairness and due process found in domestic legal contexts. Despite these concerns, however, Nuremberg’s

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legacy has been shaped far more by the nature of the convictions it produced and the certainty and tangibility of the crimes committed, than the deviations from procedure feared by contemporary commentators. As I argue in this paper, at least part of the reason for this current view is that the framers of Nuremberg were more concerned with “pageant” than they were with procedure – with public perceptions of outcomes rather than critical assessments of inward-looking processes. The capture and inevitable trial of Saddam Hussein have raised interest in Nuremberg’s legacy and implicate many of the same questions faced by the judges of the time. Questions about the appropriate substantive law, concerns for procedural fairness, and worries about political sensitivity surround the prosecution and, one would think, pre-ordained punishment of the former dictator of Iraq. Yet, despite the existence of these issues, the international community seems resigned to providing Hussein with the full panoply of due process rights that “ordinary” defendants would receive. Put simply, in the trial of Saddam Hussein, the international community seems wedded to process at the expense of pageant. In a previous paper,4 and in a presentation at the Conference giving rise to this volume, I have proposed adoption of a “legal pageant” model for prosecuting certain defendants. The legal pageant seeks to control the public display of guilt and responsibility borne by a small class of unquestionably guilty yet socially important defendants – Hussein may be counted as one of this class. To fulfil their public function, these pageants depart drastically from what many modern commentators would consider fair trials. The defendant’s right to such basic procedural protections as the right to mount a vigorous defence, call and cross-examine witnesses, make evidentiary objections based on prejudice, and to invoke the right against selfincrimination would all be seriously curtailed. Not surprisingly, these alterations have been characterized as violative of the spirit and substance of the Nuremberg Principles and international law in general. In conversations and questions, it is apparent that many view international law as clear and unequivocal on what is required for a fair trial and that deviation from these standards violates settled expectations about the rule of law – a concept that, in international law, is already far too tenuous for comfort. In this essay, I wish to address these concerns in admittedly summary fashion. I explore the question of why Nuremberg and its progeny are held in such high regard by the international community. Many ascribe their privileged status to a firm and resolute commitment to the rule of law and, in particular, to fair trials and due process. A review of the history of these trials, their actual procedures, and some period commentary, provides a remarkably different story – that the commitment to fair trials and due process was often subordinated to a desire to convict and convict convincingly. The public nature of these trials was always at the forefront; the procedures employed served these ends and were only incidentally concerned with the guilt or innocence of individual defendants.

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I end, however, with an explicit nod to current formulations of international law as they pertain to due process and fair trials. I have no illusions that the legal pageant conforms to the dictates of international law in its strictest sense. That said, the most recent trials that have so conformed have been less successful at fulfilling the real legacy of Nuremberg – convicting convincingly and persuasively. The lessons from these trials should give pause to those pressing for greater procedural guarantees in current initiatives. 1.

Nuremberg’s Lessons The International Military Tribunal at Nuremberg (“IMT” or “Nuremberg”) has been the subject of numerous academic paeans asserting its place as the foundation of modern international criminal justice. The trial of Nazi war criminals following World War II certainly holds pride of place as the most famous trial of German war criminals – but it was not the first. Following Germany’s defeat in World War I, the victorious Allied Powers insisted that the Treaty of Versailles include provisions requiring Germany to hand over accused German war criminals for trial. A multilateral Peace Commission was established to investigate and found that German war crimes were many and barbarous: murders and massacres, tortures, the rape or abduction of girls and women for forced prostitution, shields formed of living human beings . . . execution of hostages . . . aerial bombardment of open towns without there being any regular siege, the destruction of merchant ships without previous visit and without any precautions for the safety of passengers and crew, the massacre of prisoners, attacks on hospital ships . . . atrocities constitut[ing] the most striking list of crimes that has ever been drawn up to the eternal shame of those who committed them.5 As they would twenty-five years later, the Allied Powers urged creation of an ad hoc international tribunal, composed of judges drawn from the victorious nations, to convene and try these criminals. Nine-hundred and one German officials were identified as potential defendants. Lists were presented to the German government and, pursuant to Versailles, the Allied Powers demanded their delivery. All seemed in order for the world’s first international trial of war criminals for crimes against “the laws of humanity.” But it was not to be. From the peace in 1919 to the proposed handover in 1921, grave divisions had arisen between the Allied Powers about how best to handle the trials. The British and French continued to push for an ad hoc international tribunal. The United States had other ideas and, fearing the precedent that an international tribunal might set, urged the prosecution of the German

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defendants in the domestic courts of the various Allied Powers. Within Germany, popular resentment rose against handing over the defendants. The German government argued that to allow the Allied Powers to try these defendants would result in political or military revolution within Germany – upsetting the very peace that Versailles was meant to preserve. Amid waning enthusiasm for the trials and indecision regarding the best course to take, the German government was granted its wish – all German war criminals would be prosecuted, but the trials would take place in and be carried out by Germany. The subsequent Leipzig Trials were a sham. Of the more than ninehundred named defendants, only thirteen were ever convicted, and of those, few if any served sentences of any significance. To make matters worse, reports of the day reveal that many of these defendants were treated as national heroes, with parades celebrating their “acquittals” and, in the case of infrequent incarceration, celebrating the jailers who aided in their quick escapes. Today, the Leipzig Trials are little more than a footnote in the history of international criminal law. The reasons for this obscurity are manifold – but it seems that the failure of these trials to convict criminals may have had something to do with it. That the Leipzig Trials also failed miserably to demonstrate to the German people the horrors of World War I and the atrocities of their leaders is, one would believe, as important a failure as their inability to bring individual defendants to justice. The desire of the Allied Powers to prosecute German war criminals, both as a deterrent to future misconduct and ideally, to affect German public opinion and desire for future conflict, were woefully served by the result of the Leipzig Trials. The farce of Leipzig and the utter failure of the Allied Powers to impress upon the German nation the level of criminal activity conducted by their military and political leaders, was not lost on those responsible for Nuremberg. Justice Lawrence, President of the Nuremberg panel, discussed his view that the Leipzig Trials were a “farce . . . [t]he majority got off and such sentences as were inflicted were derisory and . . . soon remitted.” At Nuremberg, Lawrence was committed to providing “a fair but expeditious trial” with the paramount aim of “bring[ing] home to the German people and to the peoples of the world the depths of infamy” reached by the Nazis during World War II.6 At Nuremberg, Justice Robert Jackson confidently declared that the legacy of Nuremberg would be the conviction and demonstration of guilt of the Nazi defendants: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. . . . this trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.”7 Jackson is often reverently quoted for his ardent support for the rule of law at Nuremberg. As one of the chief architects of the tribunal, he seemed at least as interested, if not more so, in creating an historical record of Nazi Germany’s war crimes as he was with

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proving or disproving the individual guilt of particular defendants (an issue he, obviously, considered a foregone conclusion for the most high-profile of the defendants). Nuremberg, it must be remembered, was convened in the midst of a controversy reminiscent of that which divided the Allied Powers at the end of World War I. Here, however, it was the British who argued against convening a tribunal to prosecute war criminals, preferring instead to summarily execute suspected criminals wherever found.8 In 1945, the British, in a written memorandum, acknowledged that the only appropriate punishment for Nazi criminals was that they “must suffer death” and that, given the inevitability of this sanction, the “preferable course” was summary execution. The British also believed that any trial would be inefficient and would be viewed by the German public as a “put-up job” with the sole rationale “to justify a punishment the Allies have already resolved on.” The inevitability of punishment and conviction for all major war criminals would, the British believed, lead to public opinion that the trial was mere “farce” or sham. Finally, according to the British, the uncertainty of a tribunal’s legal basis could conceivably result in defence motions that would successfully challenge the legitimacy of the very institution seeking to prosecute them. The American response was by no means unanimous. Many shared former Secretary of State Cordell Hull’s view: “If I had my way, I would take Hitler and Mussolini and Tojo and their arch-accomplices and bring them before a drumhead court-martial. And at sunrise on the following day there would occur an historic moment.”9 Others agreed with Henry Morgenthau that any trial would “reap a crop of martyrs [and] be a sounding board for Nazi dogma.”10 Nevertheless, the official American position quickly coalesced in favour of establishing an international tribunal. This final position was simple – summary executions were inconsistent with the ideals of democracy and, more importantly, threatened to turn Nazi war criminals into martyrs in the eyes of the German people. An international tribunal, it was argued, would provide the “historical record” necessary to prove the atrocity of German actions and serve as a deterrent to future leaders. The key, however, was that Nuremberg must focus on convincing the world of the culpability of the defendants for the atrocities the trial would reveal. Not surprisingly, the London Charter that created the IMT did not envision the trial as ordinary and did not seek to impose regularity upon its procedures. At the outset, the Charter artfully dealt with British fears that the validity of the tribunal or its indictments could be successfully challenged. It removed this obstacle by cleverly removing questions of jurisdiction from the jurisdiction of the court! Continuing to employ end-oriented rulemaking, the Charter also included provisions intended to ensure that the defendants would not be able to disrupt courtroom proceedings with pesky evidentiary or procedural objections. The Charter relaxed normal evidentiary rules by declaring that the IMT would “not be bound by the technical rules of evidence” leading some, including Justice Lawrence, to conclude that “any

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evidence which had any probative value” whatsoever, was admissible.11 In addition, the Charter took a broad view towards relevancy as it pertained to the charges of conspiracy levelled against the defendants. In essence, the court was granted unlimited authority to admit matters that tended to prove Nazi atrocities in general without the usual requirement that such evidence relate to any specific individual act. The wisdom of these procedural and substantive alterations were to be apparent during the conduct of the trial and the aftermath of its verdicts. The relaxation of rules of evidence was done, in part, to ensure that the immensity of evidence surrounding the crimes in question could be introduced quickly and, frankly, without much argument by the defence as to relevance, authenticity, or other ordinary procedural objections. As Jackson noted, “[u]nless we write the record of this movement with clarity and precision, we cannot blame the future if in days of peace it finds incredible accusatory generalities uttered during the war. We must establish incredible events by credible evidence.”12 But the introduction of such evidence could not get bogged down in legal objections: “This Tribunal sits under a Charter which recognized the impossibility of covering a decade of time, a continent of space, a million acts, by ordinary rules of proof, and at the same time finishing this case within the lives of living men.”13 It is not difficult to see how the relaxation of evidentiary relevance and admissibility tended to serve the interests of the prosecution at the expense of the defence. A final example makes the point that Nuremberg’s focus was not on the due process rights of the Nazi defendants. Part way through the trial, the prosecution sought to introduce a documentary film into evidence. The film, Nazi Concentration Camps, was compiled from over 80,000 feet of Army film footage taken during the liberation and discovery of various Nazi concentration camps. Directed by Hollywood filmmaker George Stevens, the movie terrifyingly revealed the violence, carnage, and horrors of the Nazi camps. The nature of the crimes charged (including a general charge of conspiracy levelled against all defendants) made the film relevant despite its tangential connection to the acts or competencies of many of the defendants. As David Cohen recently remarked: The case is largely a historical narrative of the unfolding of this conspiracy rather than an examination of each defendant’s conduct . . . a narrative [that] inevitably emphasises the actions of the “conspirators” as an abstract collectivity, and operates to obscure the precise connection of specific individuals to particular events . . . the basic strategy . . . was not to delineate clearly the culpable conduct of each defendant, considered as an individual, but rather to establish participatory linkage between each defendant and a historical flow of collective activity . . .

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This was done without specifying the criteria which would render such participation culpable.14 Despite this theory of the case, the film’s introduction at trial was problematic. The narratives and images shown in the film were introduced solely by general affidavits filed by witnesses or cameramen. Many, if not all, of those who filed affidavits were available for individual testimony. Finally, the prejudicial nature of the film was manifest to all who witnessed the viewing (and to any who have seen it since). Nevertheless, the film was admitted into evidence over the strong objection of defence counsel. The film, a horror show by any measure, was certainly prejudicial to the defendants and, in normal trials, would likely have been excluded or, at minimum, greatly curtailed. But Nuremberg was no such trial and was never intended to be. As Lawrence Douglas has noted, “rather than call Eisenhower to the stand, or any of the other thousands of soldiers who had been commanded to bear witness to Nazi atrocities, the prosecution turned instead to a novel witness – a documentary film.”15 That this use of documentary film was “unprecedented” seems less interesting than the decision to use the film to fulfil Jackson’s promise that “incredible events” would be proven with “credible evidence.” The film chronicled and reenacted events and memories from numerous concentration camps – ending with the famous and chilling scene of British bulldozers moving a mountain of corpses into a mass grave with the monotone voice-over saying, succinctly, “This was Bergen-Belsen.” The court, the defendants, the audience, and the world were never the same after the airing of that movie. Did the film discuss the individual guilt of any defendant? Did it link their actions with the horrors depicted on the screen? In a larger, symbolic and conspiratorial sense, of course the film played that role; but it is all too clear that the introduction of the film, the single-lasting impression from the Nuremberg trials and the piece of evidence by which nearly all future commentators have come to encapsulate the meaning of Nuremberg, was not about individual guilt. Its service to the collective memory of the German people and the world, its testimony to the victims of the Holocaust, and its lasting effect on the world’s perceptions about the nature of Nazi evil were more than sufficient to admit it. In the lead-up to the Nazi surrender in 1945, Roosevelt believed that “the question of Hitler’s guilt – and the guilt of his gangsters – must not be left open for future debate. The whole nauseating matter should be spread out on a permanent record under oath by witnesses . . . there must never be any question anywhere by anyone about who was responsible.”16 The tribunal and, in particular, the introduction of Nazi Concentration Camps assured that Roosevelt’s wish was fulfilled. Expediency, publicity, and convictions – these are the hallmarks of the Nuremberg trial. This implies no determination that the defendants at Nuremberg received unfair trials – rather the implication is that the trial itself

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was concerned with different matters. If minimum due process was served – so be it. But the procedures implemented as part of the Nuremberg tribunal seemed far more concerned with outward appearances – that the general public would see that justice appeared to be served, rather than concerned with the individual procedural guarantees against abuse of power by the Tribunal itself. Jackson, again, provides an interesting insight into Nuremberg’s clear differentiation between ordinary justice and that which it sought. According to Jackson, “instead of an ordinary court of law” Nuremberg was created as an ad hoc institution “in order to avoid the precedent-creating effect of what is done [at Nuremberg] in our own law and the precedent control which would exist if this were an ordinary judicial body.”17 What was done here could not, and should not, be repeated or even invoked in domestic criminal law – a telling admission by the architect of an institution that would come to stand, once and for all, for the ideal that international trials must ensure fundamental fairness for defendants. Both prior to and during Nuremberg, the tribunal was subject to widespread criticism and doubt. The trial’s various irregularities and the views of its participants led many to question its wisdom and legality. One commentator, Judge Charles Wyzanksi, was deeply concerned that Nuremberg as it was planned was unfair and unwise. He, like the rest of the world, acknowledged that: The chief arguments usually given for this quasi-judicial trial are that it gives the culprits a chance to say anything that can be said on their behalf, that it gives both the world today and the world tomorrow a chance to see the justice of the Allied cause and the wickedness of the Nazis’, and that it sets a firm foundation for a future world order wherein individuals will know that if they embark on schemes of aggression or murder or torture or persecution they will be severely dealt with by the world.18 Yet, as jurist and judge, he felt such aims were improper elements in a forum dedicated to legal process and justice. “To regard a trial as a propaganda device is to debase justice . . . The objective is to create outside the courtroom a desired state of affairs.” Courts, Wyzanksi insisted, were not to be concerned with outward perceptions: “the appeal is to the disinterested judgment of reasonable men guided by established precept” and the settled expectations of law. Wyzanski believed that the curtailment of a defendant’s rights, including the gross expansion of “admissible” evidence and other restrictions, tilted the trial dangerously in favour of the prosecution. The procedural guarantees that were granted were not, he believed, the kind of rights that “at least English-speaking persons have thought the indispensable concomitant of a fair trial.” Finally, he objected to the pre-trial publicity including the

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prosecution’s and judiciary’s willingness to speak openly on the guilt and punishment of the defendants: there is nothing more foreign to [the Nuremberg proceedings] than either the presumption that the defendants are innocent until proved guilty or the doctrine that any adverse public comment on the defendants before the verdict is prejudicial to their receiving a fair trial. The basic approach is that these men should not have a chance to go free. And that being so, they ought not to be tried in a court of law.19 Presaging Hannah Arendt’s more famous comments on the Eichmann trial, Wyzanksi also took issue with the prosecution’s use of a trial to make a public statement. Although he agreed that the Nazi’s crimes should be publicised and made part of some historical record, attempts to do so in the context of a criminal trial would, he feared, result in a public backlash against the tribunal. The public, he believed, would not be fooled by a trial that departed so strongly from “widely accepted concepts of legal justice” and would see: too great a resemblance between this proceeding and others which we ourselves have condemned. If in the end there is a generally accepted view that Nuremberg was an example of high politics masquerading as law, then the trial instead of promoting may retard the coming of the day of world law.20 In this belief, Wyzanksi was by no means alone. Prior to the verdicts, many legal commentators, public figures, and journalists expressed continuing fear at the unfair nature of the trial and, in particular, the usurpation of the judicial function for extralegal purposes.21 Interestingly, Wyzanksi, like many, ultimately changed his mind about Nuremberg after the verdicts were rendered. Writing a few months after the Nuremberg verdicts, Wyzanksi reiterated his view that, prior to the trial’s commencement, “there was a grave danger that the trial itself could not be conducted in orderly way” and a fear that “the tribunal might start with a presumption of guilt rather than a presumption of innocence.” He reiterated his fear that “the propaganda aspects of the trial, instead of persuading the Germans . . . that our side was just, would persuade them that we were hypocrites disguising vengeance under the façade of legality.” Yet, after viewing the trial, hearing the verdicts, and consulting with many of the participants, Wyzanksi was convinced that Nuremberg was “a model of forensic fairness” based, in large part, on his view of the judges’ “dignity and

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firmness” throughout the trial. Further supporting his conversion was, as he saw it, the trial’s indispensable service to history: If it had not been for the trial . . . the important documents in which the defendants convicted themselves might never have been uncovered . . . and [the trial] gave historians much of the data which the world will require for proper evaluation.22 Absent from his commentary was a reassessment of the conduct of the trial and the fairness of its procedures. Was Wyzanksi satisfied that the defence was given the same rights that “English-speaking” persons might expect in any trial? Or, more likely, was Wyzanksi so satisfied of the horrors of the crimes committed that the deviations of procedure, so dangerous before the trial, were now largely irrelevant or minor? Wyzanksi could count Winston Churchill among those with similar conversions. A staunch opponent of the tribunal before the verdicts, in 1946 he declared “Now that the trials are all over, I think [Roosevelt] was right and I was wrong.”23 2.

International Law and Fair Trials As this brief account of the trial at Nuremberg and the controversies it fomented reveals, the issue of whether these defendants deserve a fair trial and whether the kinds of public tribunals to which they have been subjected should be considered fair is, I believe, a rather complicated one. It is for this reason that I have raised the idea of the legal pageant and the challenges it presents to the idea of the rule of law and fair trials. Yet, despite the difficulty of approaching this subject, I have no illusions about its current legality or favour in modern international law. International law has, perhaps unadvisedly, moved breathlessly forward in the codification and formalisation of substantive and procedural aspects of criminal justice. Since 1946, numerous conventions have included specific provisions detailing the minimum guarantees for a fair trial. The right to a fair trial is guaranteed by the United Nations Declaration of Human Rights as based in two broad principles – impartiality and independence of the judiciary, and a presumption of innocence.24 One could question whether Nuremberg satisfied these hortatory provisions, but they nevertheless moved quickly into international law with the adoption of the International Covenant on Civil and Political Rights (“ICCPR”). The ICCPR, for its part, includes specific substantive and procedural guarantees. Among the guarantees set forth or deemed implied in the ICCPR are the defendant’s right: (i) to a fair and public hearing; (ii) to a competent, independent and impartial tribunal; (iii) to equality of persons before the law; (iv) to a presumption of innocence; (v) to fair notice and opportunity to prepare; (vi) to trial without undue delay; (vii) to call and examine witnesses; (viii) to legal and translation assistance; and (ix) against self-incrimination or

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testimony.25 These guarantees, seeking to provide generalisable fairness for any defendant, have been incorporated in the founding documents for all modern international tribunals. The Rome Statute establishing the International Criminal Court contains specific provisions guaranteeing a defendant’s right to: (i) the presumption of innocence; (ii) the privilege against self-incrimination; (iii) be present at trial; and (iv) confront adverse witnesses.26 The international tribunals for Yugoslavia and Rwanda contain similar provisions. With very limited exceptions, the rights set forth in the ICCPR and charters for various international tribunals are non-derogable. The legal pageant, while it may encompass the vision and scope of early atrocity trials like Nuremberg, would most certainly be an illegal institution under current international law. 3.

Conclusion The question of how best to try criminals of the kind tried at Nuremberg and for the categories of crimes so charged was, and remains, a vexing problem for the international community and for law. Nuremberg is not the only trial to reveal these tensions. The trial of Adolf Eichmann has, perhaps, received more attention than Nuremberg for its focus on pageant. Gideon Hausner, chief prosecutor for the Eichmann case, saw the question of guilt or innocence as of little more than tertiary concern. First was the desire to make “the tragedy of Jewry as a whole the central concern.” Second, was to bear witness to the sufferers of Nazi hate, or, in Hausner’s emotive appeal, “When I stand before you here, Judges of Israel, to lead the prosecution of Adolf Eichmann, I am not standing alone. With me are six million accusers . . . they cannot rise to their feet . . . their blood cries out, but their voice is not heard”; Hausner would assume that voice. Last was the issue of Eichmann’s guilt. If guilt or innocence was all that mattered, “it was obviously enough to let the archives speak; a fraction of them would have sufficed to get Eichmann sentenced ten times over. [But] I knew we needed more than a conviction; we needed a living record of a gigantic human and national disaster.”27 We could ask how to reconcile criminal justice with a proceeding that viewed Eichmann as “peripheral to his own trial.”28 Or, we could ask, as Hannah Arendt famously did, how a proceeding with “the irregularities and abnormalities . . . so many, so varied, and of such legal complexity that they overshadowed” the defendant, could be called a trial?29 Yet, how we answer these questions should also take into account the fact that public opinion seems to have reacted favourably to Eichmann’s conviction – demonstrating increasing sympathy for Israel, greater belief in the truth of the Holocaust, and greater desire to punish Eichmann for his wrongdoing. Perhaps the best evidence of the power of these trials is the transformation of Eichmann from little known (but important) bureaucrat into the “personification” of the Holocaust.30

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Similarly, at Klaus Barbie’s trial, his individual guilt was consciously subordinated to the witnesses who, having suffered so much, now “took revenge on history” and were considered by most the real subjects and “heroes of the trial [giving] symbolically, faces to the dead.”31 The persistent tension between fair trials, radical evil, and public transformation continues to surface in the trials of truly evil men. The examples are legion – but the discussion of how to answer these questions has, sadly I believe, been largely abandoned by international lawyers in their zeal to embrace formalistic and codified due process rights. The international community has, unreflectively, embraced the notion that process is more important than pageant. One reason, perhaps, to revisit the question of due process in the trials of public, genocidal figures is that the question of their guilt or innocence is either irrelevant to the function of the quasi-judicial institutions to which they will be subject or, more likely, greatly reduced in the face of their obvious guilt. The United States Supreme Court has, on numerous occasions, determined that process is a necessary component of criminal trials precisely because such rights are essential to the “the function of a criminal trial” which “is to seek out and determine the truth or falsity of the charges brought against the defendant.”32 In the case of certain defendants – Osama Bin Laden or Saddam Hussein or, perhaps, even political leaders from the United States – their factual guilt may be documented, public, and often admitted. The issue here is not, as many may assume, a western bias against various defendants. The issue is not, one would hope, the stark contrast between summary executions for the enemies of one culture or state and immunity for others. Instead, the central question is whether the international community can or will acknowledge that these trials are categorically different from ordinary domestic trials. In some cases, with very limited defendants, it may be time to revisit the question of how much process is really due. The practical significance of the choice between pageant and process in the trial of evil is vividly illustrated by the contrast between Nuremberg and the ICTY. As noted earlier, Justice Jackson’s stated aim at Nuremberg was to ensure that the trial fulfilled “humanity’s aspirations to do justice.” The viewing of Nazi Concentration Camps, the restrictions on evidentiary objections, the overwhelming advantages for the prosecution, were all factors in convincing the world that justice had been done. Where process conflicted with public pageant, process was subordinated. Justice Richard Goldstone, chief prosecutor for the ICTY, has taken a very different approach: “Whether there are convictions or whether there are acquittals will not be the yardstick . . . . The measure is going to be the fairness of the proceedings.”33 Goldstone has, on other occasions, taken pride in the fact that “[t]here really are no serious criticisms . . . of the fairness of the trials” held in the ICTY and ICTR. He admits that “there have been criticisms about their length and their expense . . . . [but] there is only one

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way of putting on criminal trials . . . and that is to have fair procedures . . . there is no alternative . . . if they are going to be unfair, what is the point?”34 True to Goldstone’s principles, Milosevic and others have been given their fill of process. The result? His trial has been bogged down for years in vexatious cross-examination, irrelevant defences, obscure and illadvised objections, and hours of political and personal grandstanding. As is his right under the charter giving rise to the ICTY, Milosevic has abused the process he’s been granted. As a consequence, his popularity has only increased, resulting in his election to the Serbian Parliament in December 2003. Although the reasons for his election are numerous, there can be little doubt that his ongoing trial before the ICTY is doing little to erode his personal popularity among the very people he once led into genocide. The question remains whether the contemporary focus on process over pageant truly serves the ends of justice. An examination of this difficult and complex question, I leave for another day.

Notes 1. Nuremberg Principles, Art. V. 2. Czarnetzky & Rychlak, 57. 3. Douglas, 2001, 50 (quoting Harlan Stone). 4. Sylvester. 5. United Nations, 1919. 6. Lawrence, 153. 7. Taylor, 163 (quoting Robert Jackson). 8. “Aide-Me’moire,” 18-19. 9. Hull, 1:1289. 10. Morgenthau, 14. 11. Lawrence, 153. 12. Hutchinson; Smith, 35 (quoting Robert Jackson). 13. Douglas, 2001, 30 (quoting Robert Jackson). 14. Cohen. 15. Douglas, 2001, 30. 16. Rosenman, 518-519 (quoting Franklin Roosevelt). 17. Douglas, 1995, 451 (quoting Robert Jackson). 18. Wyzanksi, April 1946, 66. 19. Ibid, 68. 20. Ibid 21. Bosch, passim. 22. Wyzanksi, Dec. 1946, 59. 23. Rosenman, 545 (quoting Winston Churchill). 24. United Nations, 1948, Arts. 8-11. 25. International Covenant on Civil and Political Rights, Art. 14, passim.

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Bibliography “Aide-Me’moire from the United Kingdom,” (1945). In Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials, 18-19 (1943). Arendt, Hannah. Eichmann in Jerusalem. New York: Viking, 1963. Bosch, William. Judgment on Nuremberg. Chapel Hill: University of North Carolina Press, 1970. Cohen, David. “Beyond Nuremberg: Individual Responsibility for War Crimes.” In Human Rights in Political Transitions: Gettysburg to Bosnia. Cambridge: Zone Books, 1997. Committee on Human Rights. Equality Before the Courts and the Right to a Fair and Public Hearing by an Independent Court Established by Law (Art. 14), General Comment 13, para. 3 HRI/GEN/Rev.1 at 14 (1994). . Crespi, Irving. “Public Reaction to the Eichmann Trial,” The Public Opinion Quarterly 28 (1964): 91-103. Czarnetzky, John & Rychlak, Ronald. “An Empire of Law?: Legalism and the International Criminal Court,” Notre Dame Law Review 79 (2003): 55-126. Douglas, Lawrence. “Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal,” Yale Law Journal 105 (1995): 449-481 Douglas, Lawrence. The Memory of Judgment. New Haven: Yale University Press, 2001. Ellis, Mark. “Achieving Justice Before the International War Crimes Tribunal: Challenges for the Defence Counsel,” Duke Journal of Comparative and International Law 7 (1997): 519-537. Goldstone, Richard. “The Trial of Saddam Hussein: What Kind of Court Should Prosecute Saddam Hussein and Others for Human Rights Abuses?,” Fordham International Law Journal 27 (2004): 1490-1508.

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Halbertal, Moshe. “The Seventh Million: The Israelis and the Holocaust,” New Republic 40 (Oct. 1993). Hutchinson, Dennis. “Tribunals of war: a history lesson in mass crimes,” Chicago Tribune, 18 Nov. 2001, § 1:21. Hull, Cordell. The Memoirs of Cordell Hull. New York: Macmillan, 1948. International Covenant on Civil and Political Rights, G.A. Res. 2200A, U.N. G.A.O.R, 21st sess. Supp. No. 16, at 52, U.N. Doc. A/6316. 999 U.N.T.S. 171, entered into force Mar. 23, 1976. Lawrence, Geoffrey. “The Nuremberg Trial.” International Affairs 23 (1947): 151. Morgenthau, Jr., Hans. Germany Is Our Problem. New York: Harper, 1945. Rome Statute. Statute of The International Criminal Court. Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court. A/CONF, 183/9, art. 3(1), 22-33. 17 July 1998. Rosenman, Samuel. Working with Roosevelt. New York: Harper, 1952. Ruoso, Henry. The Vichy Syndrome: History and Memory in France since 1944 (1991). Smith, Bradley, The Road to Nuremberg. New York: Basic Books, 1981. Sylvester, Douglas, “Legal Pageantry & Derogation of Due Process Norms in the Trial of Saddam Hussein” (2004). (draft of presentation paper). Taylor, Telford. The Anatomy of the Nuremberg Trials: a Personal Memoir. New York: Little, Brown & Co., 1992. United Nations. “Commission on the Responsibility of the Authors of War and on the Enforcement of Penalties to the Preliminary Peace Conference.” (1919). Reprinted in American Journal of International Law 14 (1920): 95-154. United Nations. Declaration of Human Rights, G.A. Rep. 217 (III)(A) (10 Dec. 1948). Reprinted in 1948-49 U.N.Y.B. 535-37. . United Nations. “Principles of international law recognized in the charter of the Nüremberg tribunal and in the judgment of the tribunal.” (1950), U.N. Doc. A/CN.4/SER.A/1950/Add. . Wyzanksi, Jr., Charles. “Nuremberg – Fair Trial? Dangerous Precedent,” The Atlantic Monthly 177 (April 1946): 66-70. Wyzanksi, Jr. Charles, “Nuremberg in Retrospect,” The Atlantic Monthly 178 (December 1946): 56-59.

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Chapter 11 Responsibility for Atrocity: Individual Criminal Agency and the International Criminal Court Kirsten Ainley This chapter is concerned with the shift in international political and legal discourse away from assigning responsibility for political violence to states, and towards assigning criminal responsibility to individuals, in particular with the establishment, in 1998, of the International Criminal Court (ICC). This new Court is premised on assumptions that there are universal moral standards which apply to human behaviour, and that by assigning responsibility to individuals and inflicting punishment according to these standards, the international criminal justice system (ICJS) can deter crime, end conflict and bring about justice. The chapter takes seriously these goals, but questions the ability of the system to achieve them – and raises the question of whether the ICJS may in fact encourage atrocity by enabling state violence. It examines the move from state civil agency to individual criminal agency within international legal discourse, the limited and internally contradictory conception of international agency necessary to sustain this move and the uneasy relationship between morality, politics and law conceived by the framers of international criminal law, before considering the implications of the new system. 1.

From State To Individual Agency Past efforts by international society to control violence with law have focussed on the state as agent. However, since the Second World War and its attendant moral horrors, the approach to controlling violence has changed. Rather than structuring the relationships between states to deter conflict and suffering, the focus of international law has turned to the individual. This concentration on the role of the individual has been accompanied by a move away from narrating international violence as civil wrong and towards conceptualising it as international crime. Both the moves from state to individual and from civil to criminal responsibility pose problems for the international political theorist that will be examined below. The characteristic use of international law is to regulate the interactions between states, with breaches of the law being classed as illegal but not criminal acts – analogous to civil wrongs within domestic legal systems. States are the originators of international law, and this law can be seen as a body of rules made freely between, and binding upon, equal and sovereign bodies.1 International criminal law is often justified in a similar way – international jurisdiction is seen as an extension, by delegation, of state

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power to determine criminal law norms and to punish transgressors. Sovereign states remain the originators of law and individuals its subject. The behaviour proscribed by international criminal law, according to this argument, is proscribed within all or most national criminal codes and is recognised universally as being heinous. The analogy between domestic and international civil legal systems seems reasonable. Civil laws govern relationships between nominally equal bodies judged to be in contractual relations with each other. The move upwards from domestic to international sees the contracting bodies change from individuals or firms to states, and the guarantor of the contracts changes from state to confederation of states or international institution enabled by states. However, the domestic and international spheres are not so easily reconciled with respect to criminal law for two principal reasons: the cultural foundations of the domestic criminal system and the necessity of a particular type of agency. Domestic criminal law sees a vertical relationship between the subject of the law and its enforcer, and concentrates on punishing individuals for breaching societal moral codes. Criminal behaviour is an acute form of deviance (deviance being “conduct which does not follow the normal, aggregate patterns of behaviour”2), judged to be so serious by the representatives of the society as to merit punishment. Punishment is needed to protect individuals or, for the communitarian theorist, to protect the common life of the community, by deterring future criminal action. Domestic criminal law therefore rests on a system of shared norms and values or an idea of natural law, and punishment is justified in terms of these norms. The concept of international crime was until recently quite different from that of domestic crime. For centuries the term has been used to describe crimes which are “offences whose repression compel[s] some international dimension”3 or which have taken place in the context of international armed conflict. However, the type of crime which prompted the establishment of the ICC is different in character and much more similar to the concept of crime just discussed. New international crime is international not because of the cross-border co-operation necessary to control it, but rather due to its apparently universal moral repugnancy. International criminal law is no longer limited to covering acts committed in times of international armed conflict. According to the Rome Statute, which established the ICC, genocide, crimes against humanity and war crimes can take place in the context of internal armed conflict, and genocide and crimes against humanity can also take place in times of peace. A common or universal morality is therefore assumed to justify the criminalising of certain actions and the imposition of punishment by an international body. As will be discussed within Section 3 of this chapter, international society does not have a coherent idea of natural law or shared moral code, so it is difficult to see how it can be justified in the same way as its domestic counterpart.

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Alongside this assumption of a shared cultural context, domestic criminal law envisages a particular type of agent. A traditional move from the domestic to international level would see states being punished for breaching the morality of the society of states. However, criminal law requires not just for certain actions to have taken place (actus reus or guilty action) but also for the perpetrator of the acts to have had a particular state of mind or intention (mens rea or guilty mind). Nothing in domestic criminal law allows us to conceive of states as having mens rea as it is a psychological property that can only be held by an agent with a mind. Thus, international criminal law requires a model of the individual international agent. This move from state civil agency to individual criminal agency can be seen as illegitimate rather than just difficult. There are good reasons to think that post Second World War prosecutions of individuals for international war crimes violated the maxim nullum crimen sine lege. This maxim, which applies in international as well as domestic law, states that there can be no crime committed, and no punishment meted out, without a violation of penal law as it existed at the time. The Nuremberg and Tokyo prosecutions were for acts which were almost certainly not crimes under international law at the times they were committed. The first significant codifications of the laws of war into international treaties – the Hague Conventions of 1899 and 1907 – were intended to impose duties and responsibilities onto states, and not to create criminal liability for individuals. They do not mention sanctions for breaches of the conventions, and such breaches should properly therefore be regarded as “illegal” rather than “criminal.” By 1913, however, the Conventions were being presented as a source of the law of war crimes, and at Nuremberg individuals were prosecuted for the first time for breaches of the Hague Conventions. The sources of law claimed for other Nuremberg prosecutions were also problematic – the 1929 Geneva Convention was cited alongside the 1907 Hague Convention as the basis for war crimes prosecutions, and the 1928 Kellogg-Briand pact served the same purpose for the prosecution of crimes against peace. These treaties were intended to apply to states as international agents, not individuals, and as such were dubious sources for international criminal law. There is a second reason to doubt the legitimacy of the move to individual criminal agency: the effect it has in upsetting the relationship between the state and violence. By shifting attention towards individuals, states retain a monopoly of legitimate violence but have few formal constraints upon its use. Making the outcomes of political violence the criminal responsibility of individuals removes significant legal and moral consequences for states of using such violence, and thus renders force a more attractive tool of statecraft. Having illustrated the problems involved in making the move to individual criminal agency and responsibility in the international sphere, I

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will now concentrate on the conception of individual agency necessary to sustain international criminal law. 2. Characteristics of Individual Agency in the Rome Statute What follows is an examination of the Rome Statute that seeks to identify and critique the principal clauses which conceptualise the perpetrator and the victim of international crime. I argue that the Statute presents an internally inconsistent concept of the individual: at times seeing the person as a free and rational actor, independent of social role and culture, but conversely requiring that some persons (the victims) are entirely defined by their social role or group membership. The implications of this confused conceptualisation will be explored towards the end of the chapter. A. The Perpetrator of International Crime The fact that the Rome Statute follows the Nuremberg philosophy that men, not abstract entities (i.e. states), commit crimes against international law is not in doubt. Article 25 of the Statute, entitled “Individual Criminal Responsibility,” explicitly declares that the Court shall have jurisdiction over individuals (“natural persons”) and that “[a] person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.” However, the nature of a person is not elaborated further, and it is necessary to look at the detail of the Statute, particularly at Part 3: General Principles of Criminal Law, to understand how the Court conceptualises the perpetrator of international crime. I will examine the requirement of mens rea, the defences allowed and the rules outlining mitigating or aggravating factors of crimes with regard to punishment, to establish the qualities assumed to be held by the international criminal. As outlined in the previous section of this chapter, a crime involves both a certain action (actus reus)and a particular state of mind or intention (mens rea). Article 30 of the Rome Statute concerns mens rea and sets a high standard for the mental element of crimes: “Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.” Intent is defined as having two necessary parts – one which relates to conduct and another to consequence. Thus, a person has intent according to Article 30 where: “(a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.” Finally, to fulfil the mental requirement, the accused must have “knowledge” of the material elements of the crime: “For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events.” Most Rome Statute crimes also have the necessary mens rea written into the definition of the crime. Genocide must be committed with “intent to destroy” and crimes against humanity with “knowledge of the

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attack.” Many of the war crimes listed have “wantonly,” “wilfully” or “treacherously” written into their definitions. The requirements for mens rea are well specified within the Statute, and signal the high level of intent necessary to convict a person of an international crime. This intent is a quality closely bound up with the conception of a person as a sovereign, bounded unit, whose actions and desires are under the control of his reason – a view of the person that appears throughout the Statute. Unfortunately, proving the intent a person had at the time of an action is, in practice, tremendously difficult to do; therefore inference and legal fictions tend to be used within domestic systems to satisfy the mens rea requirement. For instance, it is assumed that all agents know “the law” (Barnes notes the irony of this situation, given the inability of lawyers to agree on what many given laws mean4) and that all agents know whatever a “reasonable person” would know in their circumstances. This use of inference and fiction is likely to be a feature of prosecutions under the ICC, and may either allow the concept of the perpetrator as rational, intentional being to stand unchallenged, or lead to an inability to prosecute on the basis that the intent required is too extensive and/or specific to be satisfactorily inferred. The defences which can be offered before the Court also offer significant clues to the type of individual the Court envisages as responsible for international atrocities. Articles 31, 32 and 33 of the Rome Statute cover defences which perpetrators can offer. Article 31 outlines the defences of insanity, intoxication, self-defence, duress and necessity. The concept of the reasonable person is evident again very strongly here. Under the Statute, individuals are not deemed to be criminally responsible if, at the time of their conduct, they suffered from a mental disease or defect that destroyed their capacity to appreciate the unlawfulness or nature of their conduct, or capacity to control their conduct to conform to the requirements of law. Equally, they are not criminally responsible if they were in a state of intoxication sufficient to destroy their capacity as above, unless they became “voluntarily intoxicated under such circumstances that the person knew, or disregarded the risk, that, as a result of the intoxication, he or she was likely to engage in conduct constituting a crime within the jurisdiction of the Court.” A “normal” person’s capacities to appreciate the kind and quality of his conduct, and to control that conduct, are taken for granted here, and the lack of these capacities is seen as being caused by either disease, defect or drugs. Thus, the default setting for the notional international agent is one of contemplation and control. This element of rational capacity appears again in the following clause, which details the range of actions allowable in self-defence. Under Article 31(1)c of the Rome Statute, a person is not criminally responsible if they act reasonably to defend themselves or another person or, in the case of war crimes, essential property, against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the person, or the other person or property protected. Essential property is limited to that which is

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essential for the survival of the person in question or another person, or which is essential for accomplishing a military mission. The agent must therefore make judgments on the proximity and legitimacy of the force facing them, the degree of danger posed by that force, the responses which would count as proportionate to the force, given the means available to them, and, in the case of defence of property, the importance of the property to be defended in terms of human survival or military tactics. There is no room in this clause for instinctive, intuitional or emotionally propelled action, even though the likelihood of finding time for all of the necessary rational calculations is small given the imminent nature of the danger required by the Statute. Article 33 covers the defence of “Superior Orders,” allowed in a very limited and specific set of circumstances, and then only for war crimes (and, arguably, aggression). The Article states first that the presumption of the Court is in favour of holding the defendant criminally responsible (“The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless . . . .”) then sets out the three conditions which must be fulfilled for the defence to be considered. The accused must be “under a legal obligation to obey orders of the Government or the superior in question,” must “not know that the order was unlawful,” and the order itself must not be “manifestly unlawful.” The standard of action here is extremely high, and the wording suggests that Superior Orders will rarely be a successful defence before the Court. Many actors will fulfil the first condition, but few will be able to satisfy the second and third, except perhaps for the less heinous of the war crimes listed. Responsibility is forced down through the ranks onto the individual actor. The position an individual holds in relation to his state also offers no possibility of a defence. Article 27 makes clear that official capacity is irrelevant both to criminal responsibility and to mitigation of sentence under the ICC, and that any special rules or immunities which traditionally attach to the official capacity of a person, under domestic or international law, will not prevent the Court from exercising its jurisdiction. The defences allowed within the Rome Statute reinforce the view of the individual gleaned from the requirements of mens rea. The “ideal type” perpetrator of international crime is reasonable, rational, intentional and knowledgeable, and his actions are entirely under his volitional control. His social origin and position within formal hierarchies and his particular capabilities and personal circumstances are all irrelevant. Only in the discussion of punishment are these issues considered, and it is to this I now turn. The correct punishment for international criminality according to the Rome Statute is imprisonment. Article 78 gives the following guidance on sentencing: “In determining the sentence, the Court shall, in accordance with the Rules of Procedure and Evidence (Rules), take into account such factors

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as the gravity of the crime and the individual circumstances of the convicted person.” The Rules outline a range of possible mitigating or aggravating factors, additional to the gravity of the crime and the individual circumstances, many of which are relevant to the consideration of what constitutes an individual agent according to the Statute. Rule 145 states that the Court should give consideration to: “the extent of the damage caused, in particular the harm caused to the victims and their families, the nature of the unlawful behaviour and the means employed to execute the crime; the degree of participation of the convicted person; the degree of intent; the circumstances of manner, time and location; and the age, education, social and economic condition of the convicted person.” Rule 145 goes on to list substantially diminished mental capacity or duress and the convicted person’s conduct after the act as mitigating circumstances, and relevant prior convictions, abuse of power or official capacity, commission of the crime where the victim is particularly defenceless or there are multiple victims, commission of the crime using particular cruelty, and commission of the crime for any motive involving discrimination on the basis of generalized or social characteristics, as aggravating circumstances. It would seem, therefore, that social or group factors are relevant in the field of punishment for international crime. The Court is instructed to take into account the degree of participation and the age, education, social and economic condition of the convicted person. Again, an “ideal type” agent can be discerned – a sort of noble savage who treats his victims as equals, doesn’t discriminate, doesn’t abuse power, picks fair fights with victims who can defend themselves and who does not have the age, education, class or money to know better. B. The Victim of International Crime In the rhetoric of the ICJS, the victim of international crime is often conceived of as humanity as a whole, with humanity then being entitled (or even required) to prosecute the perpetrators. For my purposes in this chapter, it is more instructive to examine the victims as conceived within the descriptions of the Statute crimes, and in the sections on punishment. I intend to show that the victim of international crime is necessarily socially located, entirely in contrast to the perpetrator who is modelled as having no relevant social ties. Prosecutions at the ICC will rely on evidence of harm to individual persons, yet genocide and crimes against humanity, as defined in the Rome Statute, could not take place if individuals do not have identities as members of groups. Individuals may be victims of murder or serious bodily or mental harm, but they cannot by themselves be victims of genocide or crimes against humanity. A genocide must by definition take place against a group: “For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group . . . .”5 Equally, crimes against humanity are defined by the Statute as meaning any of the qualifying acts “when committed as part of a

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widespread or systematic attack directed against any civilian population, with knowledge of the attack.”6 This is not to say that all groups count as relevant victims under international law: the Statute has difficulty conceiving and defining relevant groups. A person has not committed genocide, for instance, unless the Court makes the political decision that the group the person intended to destroy was a “proper” group. Political and social groups were explicitly rejected by the framers of the Rome Statute as possible targets of genocide, leaving a series of accepted groups that are assumed to be well bounded and stable over time, a lot like the individuals postulated as their attackers. Characteristics of the victim can also be discerned in a reading of Rule 145 of Rules, in which the Court is instructed to consider the degree of harm caused to victims and their families, and in assumptions about the relevance of motive to punishment. The Rome Statute does not cover motive in detail, but is likely to follow the ruling made by the ICTY in Delalic,7 in which the group membership of the victim can be seen again to be of relevance. Aggravated punishment is required when the accused is seen to be taking revenge on an individual or the group to which they belong, and lesser punishment is merited when the perpetrator showed compassion toward the victim or the group to which they belong. The relationship of perpetrator to victim is complicated by group membership: the actions of the perpetrator towards the group that the victim belonged to are seen as somehow separate from the actions of the perpetrator towards the individual victim.8 Groups have complex roles in the Statute: national, ethnical, racial or religious groups (assumed to be well bounded and stable over time) can be the specific victims of crimes, and are in fact required to be the victim for the successful prosecution of genocide and crimes against humanity. These groups are of course comprised of individuals, yet something aside from the sum total of people, something shared between the current members of the group and their historical forebears, is seen as relevant to their victim status.9 The group membership of the individual victim is paramount in the prosecution of the two most important international crimes, and of relevance in the determination of punishment, yet the group membership of the individual perpetrator is formally irrelevant to the Court and judged to be irrelevant to the perpetrator when he plans his actions. This confused conception of the individual as both a pre-social criminal and simultaneously a socially embedded victim is a serious issue within the ICJS, the implications of which will be examined in Section 4. 3.

Morality, Law and Politics During the First World War there was significant demand in Britain for “Germany” to be punished for making war (in breach of international treaties) as well as for individual Germans to be tried for war crimes. The US was hostile to this idea, arguing that responsibility for breaches of treaties and crimes against the laws of humanity were an issue for morality and not law.

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This view of the limits of law is still popular with some in US politics, and with many in the field of International Relations, but has long since been superseded in the dominant international criminal law discourse by a view that law is a way to realise morality across borders. International criminal law on this view represents a universal declaration of right and wrong in the international moral sphere. This section will argue that such law actually represents the results of negotiations between states rather than a universal moral code, and that as such it is inherently political. The discourse may seek to deny a role to the political, but it is weakened by its inability to acknowledge both the inseparability of politics and law, and the necessity of politics in the field of international justice. The ICC is located in political time and geographical space. The idea for such a Court gained popularity in the 1950s, but the configuration of the Cold War international system meant no real progress towards the Court was made for more than thirty years. Then, when the political context changed, new possibilities for international justice began to be pursued in earnest. Schabas argues that the situation in the former Yugoslavia in the early 1990s “provided the laboratory for international justice that propelled the agenda [for the creation of an international criminal court] forward.”10 I will discuss briefly here the format of the Rome Conference from which the Rome Statute emerged and in so doing will highlight the political nature of the negotiations. In 1998, delegates from 160 states plus 33 Inter-Governmental Organisations and a coalition of 236 Non-Governmental Organisations met in Rome at the UN Diplomatic Conference of the Plenipotentiaries on the Establishment of an International Criminal Court. The majority of the work of the Conference was done in working groups charged with looking at aspects of the formation of a Court such as General Principles, Procedures and Penalties. Provisions of the Statute were adopted “by general agreement” in the working groups. In an example of the disdain for politics found within international law, voting was not allowed within the groups – provisions had to be accepted by consensus. This process, however, must still be seen to be political. Provisions were negotiated; consensus was reached through bargaining and trade off. Two examples of this process of compromise are the positions taken by the conference on command responsibility and the death penalty. There was a good deal of support at the Conference for the proposal to extend the principle of command responsibility to civilian commanders, but China opposed this very strongly. The US negotiated a compromise position between the two sides, with civilian command responsibility possible, but requiring a higher standard of disregard. The issue of whether or not the ICC should be able to sentence perpetrators to death was the cause of much greater conflict. A group of Arab, Islamic and Caribbean states, along with Singapore, Rwanda, Ethiopia and Nigeria, argued strongly in favour of its inclusion. After much negotiation, the final Statute does not allow for the death penalty to be imposed by the Court itself, but the principle

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of complementarity (whereby national courts take precedence in prosecuting crimes covered by the Rome Statute if they are willing and able to do so) means that the national courts of State Parties can impose death sentences if their domestic legal systems allow for it. These examples show that the Conference was a place of politics where law was made, rather than discovered through illumination of a common moral code. This is even plainer in the case of the final Statute, intended by the organisers to be adopted by consensus as a triumphant end to the conference. In fact, the US (among others) was unhappy with the provisions set out in the draft Statute and forced a vote. The Rome Statute was adopted by majority vote at the final session: 120 states voted in favour, 21 abstained (including India and a range of Islamic, Arab and Caribbean states) and 7 voted against. A majority prevailed and the Statute was adopted, but through a political rather than a legal process, and without the support of key representatives from several cultural and moral traditions. One of the most difficult questions the Conference had to face was the role of the United Nations Security Council (UNSC) and the relevant provisions in the Statute remain highly controversial. The UNSC has a significant role, under Article 39 of the UN Charter, to determine aggression, and a critical concern at the Conference was the ability of the Council to interfere with the work of the Court. States who were not Permanent Members of the Council did not want the international legal process to be politicised. Permanent Members argued that decisions over possible criminal prosecutions should not be taken at a time when negotiations to promote international peace and security were under way. The compromise reached allows the Council to prevent the Court from exercising jurisdiction by passing a positive resolution, renewable annually. This measure is called “deferral,” but it appears that it could be used to permanently prevent the ICC trying a particular case, through continued renewals. The success of the US in forcing the Council to pass in 2002 (and renew in 2003) Resolution 1422 (which guaranteed that non-State Parties contributing to UN forces were exempt from the Court), by threatening to veto all future peacekeeping operations, demonstrates a genuine stalemate between Council and Court. The format of the Rome Conference attempted to factor politics out of the creation of international criminal law, but the resultant Court may be weakened by its inability to acknowledge the necessity of politics in the field of international justice. There is no substantive shared moral code upon which to ground international criminal law, even though there may be some common ground, so politics is even more a feature of the system than in the domestic context, where some societal values or culture can be assumed. It may also be a useful feature, as is only through politics that difference can be successfully negotiated (demonstrated at the Rome Conference, where an innovative Court was created through compromise and bargaining). There is a danger in treating the legal rules that resulted from a political process of bargaining between ethical traditions as if they are expressions of a universal

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moral understanding; somehow above the world of politics, for doing this tempts one to overlook the very real difficulties of reconciling law with power in the international sphere. A public political process, the basis of domestic law creation, could strengthen and develop the nascent global norms which international criminal law claims as its foundation, and suggest ways forward when law and power clash, through the open dialogue it would encourage. 4.

Implications of the Conceptualisation of Agency within the Rome Statute Customary international criminal law since 1945 has not prevented genocide, stopped wars, or ended injustice and impunity. At the time of writing (October 2004), the ICTR had convicted 18 people and acquitted one, since the first trials started in January 1997. The ICTY had tried 46 accused, of whom two were acquitted by the Trial Chamber and three have had their convictions overturned by the Appeals Chamber. Considering the scale of the atrocities these tribunals were set up to confront, this number suggests that justice is far from being done. The innovation of the ICC, with its confused conception of the agent of international violence and its fear of politics and power, is unlikely to fare any better. In the final section of the chapter I will begin to explore the implications of the particular conceptions of agency within the Rome Statute as they impact on the goals of the Court. The official website of the Rome Statute of the ICC lists the following as reasons for the establishment of an international criminal court11: to achieve justice for all; to end impunity; to help end conflicts; to remedy the deficiencies of ad hoc tribunals; to take over when national criminal justice institutions are unwilling or unable to act; to deter future war criminals. These are noble goals, but the problems highlighted in this chapter suggest that the International Criminal Court and its attendant international criminal law will not achieve the most critical of them. The Court may remedy some financial and practical deficiencies of ad hoc tribunals, and it may take over in a small number of cases where national criminal justice institutions are unwilling or unable to act. However, I argue below that it will not achieve justice for all: the vast majority of war crimes will remain unpunished, and it will not deter future crime. The possibility of the Court achieving justice for all is encouraged by the illusion that the Court has the causes and perpetrators of the most serious incidents of international violence within its jurisdiction. In fact, the move from state civil to individual criminal agency has narrowed the focus of concern to exclude most suffering. Tallgren argues that the move renders almost invisible macro issues, such as state aggression, nuclear weapons and the massive environmental damage caused by war, through its concentration on the actions of individuals.12 Justice is also unlikely to be served when it focuses on the wrong parties: a consequence of the development of the ICJS has been to frame violence which is seen as intolerable or “atrocious” as the

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action of individuals, so rendering all violence which doesn’t fall within the remit of the system, principally state violence or aggression (which is included in the Rome Statute as a crime, but is unlikely to ever be satisfactorily defined and therefore prosecuted), as acceptable or legitimate. Yet it is states that bring about the situations of conflict in which much of this violence takes place, so states which should be in the dock in order to achieve justice. Clearly, the solution is not so simple – after all, the turn to individual responsibility took place after the perceived failure of state responsibility. The relationship between state violence and law is complicated: law is intended to control this violence, but also relies on it (or at least the threat of it) for enforcement. However, justice would surely be better served by acknowledging, rather than denying, this complexity.13 The Court is also severely limited by its founding Statute as to the number of cases it can try. Most of the accused who appear before the Court will not be the direct perpetrators of crimes, but those who plan, organise and incite them. The Court will have to make judgments both between crimes, on the basis of gravity, and between persons, on the basis of the role they played in the crime, in order to manage its case load. The scale of the solution is far smaller than the scale of the problem. This, however, is a backwards looking view. What of the final goal on the list – the deterrence of future crime? If the ICC is successful in deterring crime through assigning responsibility and punishing criminals then the size of the Court machinery may in time be irrelevant. Unfortunately, the small scale of the Court (which rules out fear of being caught and prosecuted as a deterrent) and the unproblematised move from domestic to international criminal law suggest that international criminal law will not prevent future atrocities, as the necessary societal conditions are not present, and the nature of international crime differs so considerably from that of domestic crime. In contrast to domestic crimes, international crimes tend to be committed by “ordinary” people in “extraordinary” times. In their study of the Holocaust, Kren and Rappoport state: “Our judgment is that the overwhelming majority of SS men, leaders as well as rank and file, would have easily passed all the psychiatric tests ordinarily given to US recruits or Kansas City policemen.”14 International criminals cannot be identified by their deviance, dysfunction or difference to their fellow citizens. Their behaviour cannot be explained with reference to their economic or societal marginalisation. It is the circumstances they act in which are unusual. War is as far from the “ordinary course of events” as can be imagined. Rather than the Court acting as a deterrent by encouraging the convergence of the value systems of deviants to the norms of society, extraordinary circumstances may mean there are no guidelines or norms for individuals to apply, or that the norms applied change, and norms which promote stability or the safety of the group become more relevant. For instance, following the trial of William Calley for the My Lai massacre during the Vietnam War, a survey of the American public found that 51% would follow orders if commanded to shoot

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all inhabitants of a Vietnamese village. The authors of the survey concluded that a substantial proportion of Americans saw Calley’s actions as “normal, even desirable, because [they think] he performed them in obedience to legitimate authority.”15 Finally, the ICC is unlikely to ensure that justice is done because it conceives of the individual as an international actor in a contradictory and unjust way. Victims and perpetrators of international crime are seen as different types of agent – one as socially embedded and the other as presocial. This false dichotomy constructs our understanding of atrocities in a way that precludes us from seeing perpetrators as victims and vice versa. They are simply not constructed as the same types of human being, and this leads to conflict being viewed in dangerously simple terms: as the battle between innocence and irredeemable evil16 – a battle in which politics and the negotiation of difference become appeasement. Yet the perpetrators of international crime are invariably playing particular roles, be it state representative, organisation member, follower of a particular ideology, or member of the formal or informal armed forces. The Rome Statute virtually requires that the individuals it prosecutes be located in relation to others as organisers, leaders, or instigators of the crimes within its jurisdiction, yet denies the relevance of social roles. The idea of international criminality within the Rome Statute denies the importance of group membership and thus misses much of the significance of the societal nature of the person – the effect of social roles; the non-rational behaviour impelled by human social instincts; the enabling function of groups. Doubtless, a system which acknowledges this nature would be far less amenable to simple judgments of guilt and innocence, and the idea of the causal responsibility of the intentional individual embedded in international criminal law might have to give way to some (less prosecutable) concept of contributory responsibility, but this may be a price worth paying if it works more effectively to prevent violence. Prosecutions of individuals at Nuremberg for the massacres of the Holocaust did not prevent the 1994 genocide in Rwanda, nor does the threat of prosecutions seem to be guaranteeing the safety of black Africans in Sudan as this chapter is being written. A more nuanced approach to responsibility, which takes into account the enabling effect of formal and informal institutions (for instance state executives and bureaucracies, the media, cultural practices and the powers which adhere to certain social roles) as well as the tendency for individuals to act in extraordinary ways in extraordinary times, might at least have identified the likelihood of these slaughters prior to their taking place and forced all those connected to the events to consider who or what could act to prevent the circumstances of atrocity, rather than to write off the eventual killings as the unforeseeable actions of evil individuals.

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5.

Conclusion The atrocities of the Second World War presented such a challenge to Western ideas of progress and civilisation that a response had to be found. Part of this response has been the elaborate construction of an individual international agent to hold responsible for international crimes. Necessary to support this construction is the fiction of a global moral community peopled by rational individuals who act freely according to a substantially shared ethical code. This chapter has argued that this shared ethical code is a fiction, questioned the move to individual agency, examined the concepts of perpetrator and victim within the Rome Statue, and exposed the contradictory nature of the idea of international agency contained therein. To live successfully, it seems that we do need to tell stories that explain what we see in the world and find patterns or predictability within it, and we often do this by asserting agency. If this is the case, one can certainly understand the need to develop convincing stories to explain the Nazi period in Europe and subsequent moral horrors as these events seem too terrible to be conceived of as accidental or as consequences of the normal workings of the international system. They had to be described as the work of voluntary agents, for then they could be punished and future atrocities could be avoided. Agency, responsibility and blame are thus ascribed not because it is in any way correct or true to do so, but rather because we feel it necessary. The contemporary ICJS gives a vocabulary with which to structure and understand international political violence, and this provides the illusion of control. This vocabulary – of the individual perpetrator doing violence to the innocent group – is seductive but ultimately flawed and, as such, will not result in the realisation of the stated goals.

Notes 1. Tallgren, 562. 2. Denham, 119. 3. Schabas, 21. 4. Barnes, 12. 5. Article 6 Rome Statute 1998. 6. Article 7 Rome Statute 1998 (italics added). 7. Prosecutor v Delalic et al., Judgement of the ICTY in case number IT 96-21-T (1998), para. 1235. 8. This ruling also allows group pressure as a mitigating factor, which is not seen as mitigating within the Rome Statute. 9. Roberto Buonamano outlines the relationship of individual to humanity or sociability with regards to human rights in his chapter in this volume. 10. Schabas, vii.

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11. “Overview” page on website of the Rome Statute of the ICC at (14 October 2004). 12. Tallgren, 594. 13. John Parry discusses the relationship between violence and law in more depth in his chapter in this volume. 14. Kren and Rappoport, 70. 15. Gross, 325. 16. Kofi Annan, in a press conference following the ratification of the Rome Statute, stated: “The best defence against evil will be a Court in which every country plays its part.” (14 October 2004).

Bibliography Barnes, Barry. Understanding Agency: Social Theory and Responsible Action. London; Thousand Oaks, Calif.: Sage, 2000. Denham, Paul. Law: A Modern Introduction. London: Hodder & Stoughton, 1992. Gross, Richard D. Psychology: The Science of Mind and Behaviour. London: Hodder & Stoughton, 1991. Kren, George M. and Leon Rappoport. The Holocaust and the Crisis of Human Behavior. New York: Holmes & Meier, 1980. Schabas, William. An Introduction to the International Criminal Court. Cambridge: Cambridge University Press, 2001. Tallgren, Immi. “The Sensibility and Sense of International Law.” European Journal of International Law 13:3 (2002): 561-595.

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Chapter 12 Humanity and Inhumanity: State Power and the Force of Law in the Prescription of Juridical Norms Roberto Buonamano 1.

Introduction One of the curious aspects about the history of human rights is that history has always been a problem for rights discourse; by which is meant that rights discourse has always tried to erase its own history, certainly to marginalize it. In Medieval law, rights that expressed the will of a legislator were accorded a prehistorical source in divine law, while the ancient rights and liberties of the people were often expressed to be immemorial, grounded in a mythical past that transcended history, even if carried through the vehicle of rulers and customs. With the development of the doctrine of natural rights, from the writings of late Medieval canon and civil lawyers right through to its apogee in seventeenth century political philosophy, the ahistoricism of rights was reified through the concept of nature in order to lend legitimacy to the claim of their universality, their application to all people at all times. That the subject of rights in the modern conception of human rights is the human being itself in place of nature has, through the reduction of subjectivity to a metaphysical humanism, further alienated the historical conditions of human rights from their normative claims. This paper is a preliminary attempt to analyse the problem that history creates for the discourse of human rights. 2.

The Paradox of Human Rights Let us begin with consideration of an inherent conceptual tension that marks the idea of human rights. It has been remarked that an essential paradox of human rights is that while the individual bears rights by nature, simply because he or she is human, and independent of his or her role or place in society, these rights presuppose an already instituted community or society, since their function is to govern relationships between individuals.1 Already in Kant’s Doctrine of Right, part of the Metaphysics of Morals, the conceptualization of an innate right is dependent upon a thesis of sociability as man’s highest end. Kant declares that the only innate right, that is, the only right that need not be acquired and which is internal to human being, is that of freedom. By “freedom” he understands the “independence from being constrained by another’s choice,” “insofar as it can coexist with the freedom of every other in accordance with a universal law.”2 This internal and indivisible right is an original right belonging to every man by virtue of his humanity. It is composed of three capacities or spheres of action: innate equality, defined as independence from being bound by others to more than one can in turn bind them; the quality of being one’s own master (sui iuris); and the authorisation to do to others anything that does not in itself diminish what is theirs. It is clear that each of these expressions of freedom imply a

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relationship with other individuals who possess the same right to freedom. From then on in the Doctrine of Right, all further discussion of man’s external freedom and the possibility of acquiring rights through the imposition of external laws revolves around this paradoxical axiom: that the internality of innate freedom only gives rise to moral laws, rights and duties because of the existence of external relations among individuals who are already bound to one another by this primordial right. In the end, this paradoxical relationship of right is perhaps a reflection of the general thesis, apparent from reading the Critique of Judgment together with the minor works, that sociability is the origin and essence of man’s humanity, rather than its goal.3 Karl Marx also alludes to this paradox of human rights, though he does so by reversing the Kantian analysis. In On the Jewish Question he makes the claim that rights, far from being the premise of social behaviour and communication, are a cause for the individual’s separation from his community, which leads to the individual’s separation from himself. The argument is that the right of man – importantly, man is conceived as already a member of civil society – manifests itself as the right of the “restricted individual,” the individual who, separated from his community, is withdrawn into himself. Right recognizes man’s private interest and desires, reflecting the authenticity of the egoistic, unpolitical and natural individual. For Marx, rights are created by a state that has emerged separate from civil society, and that is nothing more than the form of organization which the bourgeois necessarily adopt for the mutual guarantee of their property and interests.4 So, the right of man to freedom is based not on the association of men but on man’s isolation from the collectivity, a separation that is self-divisive, its practical application being the right to private property.5 Though Kantian and Marxist philosophy assume antagonistic positions on the political function of human rights, they both acknowledge, in different ways, that human rights are conceivable only within the framework of a theory of human sociability, a political theory. Thus, in the discourse of human rights, at least from the nineteenth century, the bearer of rights is a ghost-like figure: either, as Marxist critique would have it, he is isolated and monadic to the point of having no actual social identity, or, as suggested by Hannah Arendt, he is an empty form, an abstraction, a creation of post-Enlightenment thought whose aim is to provide protection against the new sovereignty of the state and the new arbitrariness of society. So, says Arendt, “[f]rom the beginning the paradox involved in the declaration of inalienable human rights was that it reckoned with an ‘abstract’ human being who seemed to exist nowhere, for even savages lived in some kind of social order.”6 3.

Humanity as the Subject of Rights The obvious, seemingly intractable question that arises from this paradox is how to define the subject of rights? Or, to be more precise, knowing that it is the human being that is the subject of human rights, what

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meaning do we ascribe to the signifier “human,” or that of “humanity”? At one level, it might be argued that the answer to this question lies in metaphysics: that the question of the subject in the discourse of human rights is essentially part of the broader philosophical enquiry into the metaphysics of subjectivity that we have inherited from the phenomenological tradition, in particular from Heidegger and his followers. Indeed. Heidegger’s challenge to modern humanism can quite easily be directed specifically towards juridical humanism. For Heidegger, the valorisation of the human subject is the product of a form of subjectivity that conceives of being only through the reference of man; thus, humanism is essentially a form of anthropology, an interpretation of man that already knows fundamentally what man is and hence can never ask who he may be.7 Juridical humanism would refer to the paradigm of metaphysical thinking that posits the individual human being as the origin and end of legal rights. The premise of this form of humanism is that rights inhere in the individual being by virtue of his or her reason or will, and so justice would consist, not, as in the ancients, in the correct ordering of relationships and affairs to reflect the natural order, but rather in the ability of law to give effect to the inherently rational and intentional capacities of man. On a Heideggerian interpretation, juridical humanism claims for man the position of the legal subjectum, of that which lies before or beneath justice and truth – that is, the underlying reality that gives rise to legal rights. An effect of this philosophical position is that juridical humanism suffers from being restricted to a necessarily ahistorical thesis of human rights. It effectively prevents us from asking questions about the historico-political conditions that gave rise to the idea of humanity as the subject of rights. Such questions would inevitably reveal the historically contingent foundation of the discourse, and ultimately undermine its fundamental premises – the inalienability and universality of human rights. As a way of proceeding, then, let us suspend the metaphysical claims that the discourse makes for itself, and instead inquire as to how the subject of rights actually has been constructed and for which purposes. Arendt’s analysis in The Origins of Totalitarianism, which associates the end of the rights of man with the decline of the nation-state, proceeds from an historical study of the events surrounding the treatment of minorities and refugees in the early twentieth century.8 The proclamation of human rights was to protect individuals who were no longer sure of the estates to which they were born or of their equality before God as Christians. Human rights were eminently suitable to this task, since they proclaimed themselves to be inalienable, situated outside the political order and irreducible to other rights or laws. Such needs brought the juridical principle, man as the source of human rights, into a direct relationship with the political principle, the people as sovereign in government. Through this relationship the question of human rights was inextricably blended with the question of the emancipated sovereignty of the people, so that the representational figure of man within human rights gradually faded to reveal the face of the people. Henceforth,

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rights could be claimed not by an individual as a distinct political being, but by an individual who could identify him or herself with a sovereign people. The Minority Treaties that emerged after the First World War, largely as a result of the redrawing of territorial boundaries, were so dependent upon the idea of national sovereignty that they had the effect of empowering nation-states to either assimilate or force beyond their borders populations which had not been identified as sufficiently governed to warrant self-determined nationhood. The problem for the masses of stateless persons that were created by the two world wars was that it became difficult for them to claim their human rights once they lost their political status as citizens of a state. In other words, the declaration of human rights was of no use to persons who had fallen into the state of rightlessness, given that human rights had been conceived of in purely political terms. Arendt explains the practical effect of the paradox of human rights in this incisive passage: The conception of human rights, based upon the assumed existence of a human being as such, broke down at the very moment when those who professed to believe in it were for the first time confronted with people who had indeed lost all other qualities and specific relationships – except that they were still human. The world found nothing sacred in the abstract nakedness of being human.9 The coupling of “man” and “citizen” in the title of the French Declaration of 1789 already heralds the fact that the naturalness of man must give way to the teleology of political association, which the second article affirms,10 and that the true form of political association, in which sovereignty resides, is the nation.11 In fact, as many historians have argued, the document cannot be understood outside of the context of the socio-political changes that were being instituted around the events leading to and following the French Revolution. At the structural level, one of the permanent effects of the Revolution was to dissociate the state from the royal person and replace it with the nation, in which the concept of citizenship attributed a political identity to an otherwise metaphysical subject. Of course, since the American and French declarations in the eighteenth century, there has been a perpetual challenge to the equality of rights. The citizen of a nation has become the international citizen. The rights belonging to man generally have been extended and adapted to women and children specifically. The political rights of the citizen have been augmented by the economic rights of the worker, and the citizen’s right to civic participation has been supplemented by the social right to welfare. Finally, in a challenge to the Eurocentric tradition of valorising the individual, we have come to recognize the special rights of peoples. The question of equality that continues to haunt the contemporary discourse on human rights, has, in a way, diverted attention from the theoretical problems of subjectivity. It is

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a fact that so many human rights scholars are absorbed with the principle of equality, in arguments on whether, and the extent to which, the universality of human rights may be reconciled with cultural and religious relativism, that the question of the subject of rights is evaded. Considering the relatively rapid multiplication of rights in international law, and the impressive array of institutions and legal machinery concerned with their enforcement, it is easy to ignore the process of the progressive generalization of the subject of rights. This process is perhaps more clearly observable in the development of international humanitarian law, particularly in its new concern with international crimes. The concept of crimes against humanity, which we have inherited from the Charter and the judgment of the International Military Tribunal at Nuremberg,12 has from its inception struggled to define the humanity that it seeks to protect. In the decision on the Erdemovic case, the International Tribunal for the Former Yugoslavia defined “crimes against humanity” in terms of serious acts of violence that harm human beings by striking what is most essential to them: their life, liberty, physical welfare, health and dignity. However, it continues: crimes against humanity also transcend the individual because when the individual is assaulted, humanity comes under attack and is negated. It is therefore the concept of humanity as victim which essentially characterizes crimes against humanity.13 Unfortunately, with this definition we are no closer to understanding the “humanity” that is the object of the crime, or how it is that humanity is negated. After all, we rarely justify our national criminal laws on the basis that an assault on an individual is an attack on or deprivation of humanity. In the end, the formulation and application of crimes against humanity must turn towards some analysis of the factual state of affairs and psychological conditions of the perpetrator rather than a determination on whether the victim has been deprived of his or her humanity. So, the Rome Statute of the International Criminal Court defines crimes against humanity as acts “committed as part of a widespread or systematic attack directed against any civilian population.”14 The crime depends not on whether humanity has been the victim of the aggression but whether the acts can come within the rubric of a systematic policy directed against a civilian population that is identifiable as a group.15 The anomalous legal position that is created is that the person who murders twelve individuals in some psychological state of rage, where the victims do not share any particular relationship that has been targeted by the murderer, may be considered a criminal under national laws but would not be considered to have attacked humanity in its essence; whereas the person who, motivated by racial, political or cultural aspirations to hegemony, plans and executes an attack on twelve members of a particular minority group, will

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have committed an international crime that has transcended the harm caused to the individual victims. Notwithstanding the indeterminacy that rests with the process of subjectification, modern humanitarian discourse is committed to the idea of humanity as a victim of certain international wrongs. And where there is not even the role of the perpetrator to fall back on, as with the emerging rules on humanitarian intervention, then other principles of the sacredness of human life need to be invoked. In the case of humanitarian intervention, humanity is represented by the pure experience of human suffering. If the innocent woman, child or family that is deprived of food, shelter or medicine as a consequence of a civil war is deserving of humanitarian assistance, it is because we – that is, the international community of states – have decided not to tolerate some human suffering: namely, suffering that is a by-product of a type of violence which, because directed internally, undermines the integrity of the state. On the other hand, it cannot be ignored that the concern with human suffering at the level of international law, and the apparent willingness of state actors to sacrifice their territorial and jurisdictional sovereignty in humanitarian matters, coincides with the emergence of what we may call, borrowing from the work of Michel Foucault,16 the new bio political concerns of the state: which is to say, an interest in biological life, in particular, in sustaining and managing life, as a way of exercising power over individuals. 4.

The Liberal State and Juridical Humanism The liberal tradition of human rights, which extends as far back as the English Habeas Corpus Act of 1670 and Bill of Rights of 1689, revolves around the assumption that the division between the state and society cannot be reconciled, and thus that it is the task of politics to manage the relationship so as to refrain as much as possible from interference with the individual’s liberty. The assumed antagonism between society and state is no doubt grounded in the socio-economic theory of the nineteenth century, but the terms of this debate may be traced back to the seventeenth century, when the theory of sovereign power was being formulated as a problem of the balance of political authority and the individual’s natural rights. Thomas Hobbes’ preoccupation with the English civil war lead him to insist that the creation of a body politic, in the guise of Leviathan, entailed the surrender of individual rights. However, because this surrender had as its sole rationale the maintenance of the personal security of each individual, the right to personal security was proclaimed as the one right that could not be alienated. Thus began a tradition of theorising sovereignty in terms of individual rights that would be transformed into civic rights upon the state coming into existence in order to temper the instability of natural society. If politics was henceforth a matter of constructing a social space that would preserve the integrity of the individual’s freedom, this freedom was increasingly viewed in civic or political terms – in other words, in relation to the theory of sovereign power. The neo-republican idea of liberty in early

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Modern England emphasized the collective aspect of freedom. Influenced as they were by Machiavelli’s discourses on Roman republican ideals, writers such as John Milton, Marchamont Nedham and Algernon Sidney understood by liberty not the individual’s sphere of independent action, but the state of living under the rule of law rather than the arbitrary coercion of another, which they compared to the condition of slavery.17 This particular interpretation of civic liberty lost much of its force when the emerging social sciences, particularly political economy, separated the notion of society from the doctrine of the state of nature, thus revealing the complex interplay of personal economic interests with the existence of multiple forms of social organisation. Nonetheless, the idea that the rule of law is the vehicle through which individual rights can be reconciled with the survival of a body politic, which was bequeathed by the early Modern theory of civic liberty, came to form an integral part of later liberalist thinking. Let us not forget that when John Locke proposes that the individual has a natural right to property, he makes it clear that the right itself is of little value without the political institutions to guarantee it – on its own, natural right is merely the vanishing point from which political society must be constructed.18 What is truly essential to human existence is less the natural right to property than the values associated with the productivity of labour and the economic utility of that right. Hence, for Locke the pre-eminent institution of political society is the legislative power, which, as an extension of the individual’s natural legislative power, submits the latter to the rule of law.19 When, during the eighteenth century, the ideas of political equality and popular sovereignty began to dominate political philosophy, liberal ideology looked to the concept of democracy to provide an artificial means of overcoming social inequalities and the political effects of disparities in wealth. As a legacy of the feudal economy, these social inequalities stood in the way of the theory of liberty based on the security of the individual’s economic interests. The legal fiction of democracy, far from dismantling inequalities and social differences, transposed them into legally recognised relationships, predominantly contractual in form. The importance of this legal fiction, particularly for the American colonies which relied on a rationalist conception of freedom to found their independence movements, was that the state was reduced to a purely structural mechanism for protecting the natural laws of the circulation of commodities and social labour. Consequently, the rule of law came to serve the democratic principle that instituted artificially equal relations among individuals. The legacy of the development of liberalism for the modern discourse of human rights is twofold. In the first place, human rights have been stained with the assumptions of liberalism, and the association of freedom with enlightened self-interest remains to be properly severed. As we have already suggested, the abstraction of “man” as the subject of human rights has always entailed some political identity. Liberalism was able to

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create an identity because it likewise utilised the individual being as the ontological subject of the political system. Liberalism has as its principal objective the protection of the liberties of the individual political subject, though these liberties are merely those rights necessary for the individual to function within that civil or political environment. In this sense, the ascription of rights through liberal ideology is a self-fulfilling prophecy; it is constitutive of the very system that purports to be the grantor and guarantor of those rights. That is to say, the liberal subject, with all his or her inherent rights, is as much the foundation of the liberal political order as a product of it. When “nature” was replaced by “man” and later “humanity” as the source of inalienable human rights, these rights initially took the form of liberal rights, since the concept of liberty or freedom was bound up with the philosophy of the individual, the individual taken as a social being whose goal is to actualise his or her natural aspiration to freedom through the mechanism of a political order. Needless to say, this particular form of legal subjectivity was supported by other disciplines or systems of knowledge that declared the individual being an epistemological subject: the transition from the natural to the social sciences was one of the paradigmatic historical processes that nurtured the new philosophy of subjectivity. The emergence of social and economic rights, including the right to self-determination, to supplement civil and political rights, has not in any significant sense undermined the liberal foundation of human rights. If the progressive generalisation of the subject of rights has created a subject that is universal in the sense of being devoid of all socially constructed properties, nonetheless, the prescription of this juridical norm and the laws that regulate its protection depend upon the presence of national sovereignty and the political institutions that give it its force. The relations of power that allow such institutions to operate and laws to take effect are, in fact, reified by the enunciation of human rights. It is not merely a case of the sovereign state making possible such universal rights through institutions and laws that conform to the juridical norm it has created, but of the juridical norm of human rights making possible the perpetual existence of the sovereign state. The implicit argument here is that this relationship between the modern state and human rights is only seemingly paradoxical: each time that human rights are declared or enforced against a state institution, the legitimacy of the state is thereby reinforced; after all, on our hypothesis, the state depends upon the existence of an individual who possesses rights which the state recognises as fundamental and constitutive on a political level. In the second place, it has become virtually impossible to conceive of human rights outside of the modern forms of democratic rule, though this is an historical rather than philosophical equation. We have encountered the argument that, as a consequence of the development of human rights in the context of the emerging nation state, the actual subject of human rights was

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conceived as necessarily an individual who acquires the political rights of citizenship – absent this acquisition, the individual is juridically naked. Where the English civil war set the course for political theory’s concern with the balance between sovereignty and individual rights, the French Revolution reset the focus on political power and the individual in terms of the possibility of achieving liberty through the mechanism of popular sovereignty. Rousseau’s starting point for critique of the liberal order was projected onto a new, post-revolutionary plane by Tocqueville. For Rousseau, the artificial role of the individual in liberal thinking must give way to “natural man,” the individual who is not already socially constructed. It is inequality, as the natural condition of mankind, which must serve as the starting point for rectifying the beach between the state and civil society. As in a theoretical camera obscura, Rousseau’s natural society, marked by inequality among individuals, becomes Tocqueville’s society of equals, in which the condition of equality founds the principle of political freedom. For Tocqueville, the accidental nature of inequalities and the competition they create may be overcome through each individual’s acting out his common traits and resemblance to others, a condition which is best implemented by a democratic state in which the law reflects the essential equality of human beings.20 The relationship between democracy and human rights was constructed when popular sovereignty, borrowing on a liberal legacy which it reacted against and thereby could not overcome, was conceived in terms of rights to political participation held by individuals identified as citizens. Eschewing the ancient forms of democracy, modern political theory married the notion of the citizen as legislator and the individual as legal subject through the principle of the equality of all before the law – an adaptation of the rule of law to the doctrine of popular sovereignty. The theoretical framework for modern democracy is a nexus between the fundamental liberal preconditions (the liberty and security of person and property) – which, as Hobbesian and Lockean philosophies attest, are not merely compatible with but may be best protected within monarchical systems of government – and the principle of political equality. The functional result is the constitutional dependence of all rights upon a political structure reflecting the dual capacity of the individual: as a citizen who expresses his or her political status through participation in sovereignty, and a legal subject who expresses his or her subjection to the laws of state which, in turn, recognise individual rights as against state instrumentalities and other citizens. 5.

The Relationship of State Power and Juridical Right The modern doctrine of human rights has been constructed on the foundations of a positivist conception of juridical norms. This conception is dependent upon two assumptions. The first is that there is a division between state power and juridical right, a division which makes it possible for law, as an external force, to act upon the exercise of political power – that is to say,

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the law acts from outside political power to regulate its exercise by pronouncing upon excesses or abuses that interrupt the individual’s enjoyment of his or her rights. The second is that the norms of human rights intrinsically are expressions of positive law created by the state in the exercise of its legislative sovereignty. Under the first assumption, the division cannot be reduced to one of politics and law, since their interdependence is precisely what defines the state under the rule of law. Rather, the division is transcribed on the plane of legitimacy and legality, in terms of the following relationship: the legitimacy of a particular exercise of political power is always a question of legality, of its conformity with existing principles of right, whether or not constitutionally prescribed. On its face, the distance between political power and juridical right supports the thesis of the necessity of the institutions of right intervening to ensure that the political organisation and governance of a society operate in accordance with prescribed norms. What remain less acknowledged are the relationships of power by which those norms are instituted and affirmed in the dual name of a legal science that claims to be autonomous and the liberal-democratic political form. In fact, the relationship between legitimacy and legality is a disguised reference to an earlier, Medieval typology that rendered divine law and natural law the guardians of right and justice over the legislation of the prince. However, it would be misleading to suppose that human rights now speak with the singular voice and authority of natural law, since what makes human rights possible is that they are inscribed in the very political order that is a condition for their recognition. The division of political power and juridical right is a fiction, one that conceals the fact that law derives its force from the existence of political institutions which pronounce the law as a matter of positive rules – even the norms of so-called inalienable and universal human rights do not escape this constitutional paradigm. This leads us to the second assumption. The development of human rights at international law is intimately tied to the parallel development of the sovereign nation state, an entity whose sovereignty jointly derives from the exclusive jurisdiction to make laws for its people and its freedom from the coercive authority of any other state. The concept of state sovereignty has both an external and internal signification, and they are mutually constitutive and reinforcing: externally, a sovereign state is recognised as an independent body at international law; internally, a sovereign state exercises supreme municipal power.21 The emergence of international institutions concerned with the declaration, observance and enforcement of human rights may be considered an effect of the stability and permanence of the notion of the sovereign state rather than a challenge to it. In the first place, the legitimacy of international law is always a question of state participation and promotion. This participation involves both accession to international instruments – the treaties, declarations and conventions – and their ratification through the legislation of enactments, rules and codes. In both cases, and precisely in

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their confluence, it is the state’s sovereign power to legislate that makes possible the juridical recognition and protection of international human rights. Moreover, though the state notionally may have been replaced by certain international bodies in terms of the source of legal prescriptions of human rights and the bureaucracy that attends to it, the claims of individuals largely are mediated by and depend upon relevant state institutions and laws for their enforcement – putting aside the emerging field of international criminal responsibility. The force of law behind the doctrine of human rights lies with the fact that it declares right in the name of a humanity which it – or at least the political structures that support it – defines in a particular way. It is facile to propose that, for all its metaphysical abstractness, we do not know the subject of human rights. Instead, it is imperative that we inquire into the construction of the subject that is presupposed by the discourse and practice of human rights, with all the juridico-political history that is embedded within this form of subjectivity. The principal thesis we have been working through is that the prescription of juridical norms around the concept of humanity is not a benign development of a humanistic ideal that proclaims the sacrosanctity of human life, nor the final exposition of a philosophical position on the liberty of the individual against the intrusive effects of state sovereignty; rather, it is an effect of the form of power exercised within the institutions of the modern liberal state and through the instrument of international law.

Notes 1. Manent, xvi. 2. Kant, 30. 3. See Arendt, 1982, 72-77. 4. Marx and Engels, 99. 5. Marx, 229-231. 6. Arendt, 1975, 291. 7. Heidegger, 133, 153. 8. Ibid 9. Arendt, 1975, 299. 10. It states that the goal of every political association is the preservation of the natural and indefeasible rights of man. 11. The third article states that the principle of all sovereignty resides especially in the nation. 12. Charter of the International Military Tribunal, 1945, Article 6(c). The principles in this instrument were affirmed by the UN General Assembly in Resolution 95(I) of 11 December 1946, entitled “Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal.”

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13. Decision of 29 November 1996, UD Doc. IT-96-22-T; cited in Greppi. 14. Article 7. 15. See Ranciere, 129-130. 16. See Foucault. 17. Skinner, 59-99. 18. Locke. 19. Manent, 50. 20. See Tocqueville. 21. See the discussion of the sovereignty and independence of states in Gilson, 53-58.

Bibliography Arendt, Hannah. The Origins of Totalitarianism. New York: Harcourt Brace & Co., 1975. _______. Lectures on Kant’s Political Philosophy, ed. Ronald Beiner. Chicago: The University of Chicago Press, 1982. Foucault, Michel. The History of Sexuality: An Introduction, trans. Robert Hurley. Harmondsworth: Penguin Press, 1978. Gilson, Bernard, The Conceptual System of Sovereign Equality. Leuven: Peeters, 1984. Greppi, Edoardo. “The evolution of individual criminal responsibility under international law.” International Review of the Red Cross 835 (1999): 531-553. Heidegger, Martin. “The Age of the World Picture.” In The Question Concerning Technology and Other Essays, trans. William Lovitt. New York: Harper & Row, 1977. Kant, Immanuel. The Metaphysics of Morals, ed. and trans. Mary Gregor. Cambridge: Cambridge University Press, 1996. Locke, John. Two Treatises of Government. Ed. Peter Laslett. Cambridge: Cambridge University Press, 1988. Manent, Pierre. An Intellectual History of Liberalism. Tr. Rebecca Balinski. Princeton: Princeton University Press, 1994. Marx, Karl and Frederick Engels. The German Ideology. Moscow: Progress Publishers, 1976. Marx, Karl. “On the Jewish Question.” Early Writings, trans. Rodney Livingstone and Gregor Benton. Harmondsworth: Penguin Press, 1981. Ranciere, Jacques. Disagreement – Politics and Philosophy. Tr. Julie Rose. Minneapolis: University of Minnesota Press, 1999. Skinner, Quentin. Liberty Before Liberalism. Cambridge: Cambridge University Press, 1998.

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Tocqueville, Alexis de. Democracy in America, ed. J. P. Mayer and Max Lerner, trans. George Lawrence. New York: Harper & Row, 1966.

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Chapter 13 New Balance, Evil, and the Scales of Justice Vincent Luizzi Suppose we overhaul our response to crime so that the emphasis is on the offender’s doing good instead of doing bad to the offender. Is such an approach at all viable in dealing with acts of extreme wickedness, terrorism, or crimes against humanity? In this paper I identify more specifically the elements of this approach and its application in these situations. The war in Iraq presents numerous instances of evil perpetrated by a state or in the name of one and raises anew the question of how to respond and what punishment is appropriate. What should be done to Saddam Hussein as a penalty for what he did to his citizenry? What should be done to U.S. officials for allowing the abuse of Iraqi prisoners and to those who abused these prisoners? Is there an alternative to any standard approach of doing bad to the offender? The approach I develop in this paper, which I call “New Balance,” is derived from the common sense notion of punishing the offender to balance the scales of justice and from major theories of punishment which build on this notion. Traditional thinking depicts offenders as upsetting the scales of justice with the evil they caused and shows society offsetting it by delivering some harm or evil to the offenders. Utilitarians do so in the name of deterrence and the greatest good of society while retributivists, who abhor using an offender as a means to deter, justify the harm they cause the offender as the offender’s just desert. New Balance does employ the scales of justice; it acknowledges that offenders’ deeds have upset the balance; it holds the offenders responsible for doing so, and it aims to give them what they deserve without using them as a means to an end. But New Balance’s approach to offsetting the evil caused by the offender is to require the offender to do good or to engage in acts calculated at positioning the offender to do good. Requiring community service for someone convicted of shoplifting or attendance at rage management classes for someone convicted of an assault are examples. It is noteworthy that New Balance is not among those extreme approaches, which dispense with the scales of justice, desert, responsibility and punishment, like Darrow’s and Tolstoy’s which seek to abolish punishment or like Menninger’s which treat crime as a disease. New Balance is akin to such pioneering attempts to address wrong-doing as therapeutic jurisprudence, restorative justice, community peace circles, holistic justice, along with the longstanding Native American approach of taking every step to weave the offender into the fabric of the community. An important point in its favor is its ability to unify the thinking of a number of cognate views and make explicit what the unifying features are.

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Surely the burden is on the proponent of New Balance to identify the counterpart to each penalty which Old Balance imposes. It may be quite clear that twenty-four hours of community service is equivalent to a $300.00 fine for public intoxication, but what would New Balance’s equivalent be to felony possession of a controlled substance with intent to distribute which might carry a fine of $10,000 and incarceration for twenty-five years? What would its equivalent be for such gross acts of wickedness as genocide and terrorist destruction? While I cannot meet this burden in this brief discussion, I do think it fair to highlight how we have devoted millennia to determining what the right amount of pain or evil is to send the way of offenders so as to restore the imbalance created by them. Surely some sustained and considered reflection is in order to determine the viability of New Balance, as much as informed dialogue and debate are to assess New Balance’s ability to respond to crimes of an especially great magnitude. In what follows, I consider how we now respond to these acts, alternatives akin to New Balance, and the approach of New Balance itself which is informed by these alternatives. Using the traditional model, we find punishments for crimes like genocide ranging from prison terms up to life, to execution. In Ethiopia, for example, officers and civilians were charged with acts of genocide during a campaign of Red Terror and were prosecuted under Ethiopia’s penal code. One of them received the death penalty in 1999 for ordering the torture and murder of people, and in the next few years some two hundred received prison terms ranging from two years to life.1 During the Nuremberg trials of 1945-1948, Nazi war criminals received sentences ranging from imprisonment to death by hanging.2 When the trial is conducted under the law of a nation, the death penalty is in the offing if permitted by that nation. When the jurisdiction is international through the United Nations, the death penalty is not an option. The first tribunal of this sort since World War II was convened 1997 to try a Bosnian Serb for war crimes and crimes against humanity including murder and torture during the Bosnian War. One allegation detailed his ordering a prisoner bite off the genitals of another prisoner.3 One commentator acknowledges the disparity between the enormity of some war crimes like those of Milosevic and the limited penalties which tribunals can impose. He mentions Hannah Arendt’s observation about the Nazi war crimes tried at Nuremberg: “For these crimes no punishment is severe enough . . . . this guilt . . . oversteps and shatters any and all legal systems.”4 Nonetheless, he recommends that this route is preferable to the alternatives of doing nothing or employing summary executions, which President Franklin D. Roosevelt thought appropriate, but never ordered, in dealing with high-ranking Nazis. This perception that there is no adequate response to crimes of great enormity has strong roots in common sense. Even so, it makes sense on any model to ask what a reasonably adequate response would be.

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A number of teachings about non-violent responses to crime inform our thinking about what an adequate response might be. There are the ideas of Jesus, Gandhi, Ikeda, and Martin Luther King, as well as those of people who believe crime and the traditional punishments to be a manifestation of political domination, like Marx and Wolff. There are people whose estimation of human nature is such that violent responses to violence worsens the situation while non-violent responses and love promote harmony, a view which is included by some of the thinkers already mentioned. This same view is part of the moral logic that we are no better than the perpetrators of violence if we respond by doing evil to them. It is also part of the logic that we end up literally having to pay a high price to ensure that offenders pay for their crimes under contemporary approaches that we might call “Old Balance.” What is interesting is how people committed to nonviolent responses to large-scale violence do not always extend the commitment to offenders. The Quakers and Friends point to some alternatives in the wake of 9/11. Friends United Meeting provided people with a form letter to send to President Bush urging that we not go to war. It underscored their condemnation of violence and invoked Jesus’s teaching of love and Paul’s advice to meet evil with good as the proper response to violence. “The advice of the apostle Paul that we overcome evil with good may point the way to the recovery of our national spirit.”5 Still, the letter shows adherence to justice as usual when dealing with the specific offenders: “I hope that those who helped to plan and carry out these atrocities will soon be brought to justice before a court of law.” Another case in point comes from The Nonviolence Commission of the International Peace Research Association. We should not respond to the violence of 9/11 with more violence. Invoked is the famous wisdom of Martin Luther King, Jr. that “darkness cannot drive out darkness” along with a recitation of a host of contemporary thinkers – Vaclav Havel, Daisaku Ikeda, Nelson Mandela, and Elie Wiesel, mostly Nobel Laureates – who are committed to nonviolence and a nonviolent response to 9/11. The response that is urged is an international one. The international community would track the terrorists down and bring them to justice. Doing so very regrettably may mean the use of force. But that is the extent of the nonviolent response. There is no indication that, once these people are brought to justice in as peaceful a manner as is possible, we will not employ the traditional model of Old Balance. Says Ralph Summy in 2002 in “A Nonviolent Response to September 11,” “in order to maintain a peaceful world . . . criminals . . . must be brought to justice, and sometimes violence becomes the instrument of last resort. . . . Thus only when the suspect violently resists arrests can there be a physical transgression of the nonviolent ethic.”6 Advocates of having offenders make restitution as the proper response to crime come under the umbrella of New Balance but do consider more serious crimes like murder to be especially difficult to address. Still,

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these advocates stretch the model to require a lifetime of service to the family of the victim or at least compensation and a willingness to be reunited with the community. They claim it is unlikely that large numbers of offenders would not work given the monotony of doing nothing, and I would add that coupling this work with a mindset that we see the offender as doing good as an additional motivation. As Abel and Marsh bring out, “In ‘worst case’ situations it may be necessary for offenders to labor in prison factories for their entire lives, the proceeds going to both the victim’s family and the general revenue. In the best cases, some time might be put in this way with the remainder in one of the community-based programs.”7 This line of thinking is useful but might err on the simple side as do other Old Balance methods in that both think about sentencing offenders for large blocks of time without much detail. A study by David Anderson highlights projects like those in Arizona, Georgia, North Carolina, and Texas, which provide a “ladder of sanctions” as an alternative to incarceration, but which could head the noncompliant offender to prison. Also known as intermediate sanctions, they include, as one moves up the ladder, supervised probation, house arrest through electronic monitoring, and work at day centers. The path for those who fall off the ladder is work-release, boot camp, and prison. One variation includes a prison term at the lower rung of the ladder prior to the alternatives.8 This approach is classified as rehabilitative in an American tradition traceable to John Augustus and further justified for being more costeffective than incarceration.9 The ladder represents how a variety of sentencing alternatives can be selected during the course of punishing and rehabilitating someone when incarceration seems costly and counterproductive, but the use of any of these alternatives is guided by a rehabilitative ideal. The alternatives are considered especially appropriate for non-violent offenders and include treatment programs for some sex offenders.10 This line of thinking is very much akin to New Balance in that rehabilitation can be subsumed under the requirement of offenders to do good and more specifically of positioning offenders to do good. It does not explicitly affirm all of the elements of New Balance, and New Balance does not require rehabilitation. The applicability of these models to extreme circumstances has yet to be investigated, and there are indications that people who commit serious offenses are not candidates for alternatives to prison, in Anderson’s view. The challenge for New Balance is to bring into the realm of the imaginable a response to great evil that requires the perpetrator to do good; and it seems to require a great deal of imagination to plan specifically for such a sentence and to keep it meaningful for future generations that will be paying for its enforcement. A traditional life sentence suggests little about the details about the day to day and year to year nature of this life, but a New Balance alternative requires specificity.

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Below is a plan for sentencing a perpetrator of genocide who is twenty-five years old to a lifetime of doing good: Prison Factory Labor 5 years (Compensation to victims & their families) Prison Factory Labor 5 years (Compensation to victims of similar offenses) Combinations of: Monitored community service Monitored work with similar offenders Work in self-sufficient detention facilities Supervised work with international units like Amnesty International Supervised activities which deliver care to victims of genocide Supervised discussions with family members of victims of genocide Input into choice of supervised service activities Payments into account for self-support of monitored living in old age In this plan, New Balance as theory gets translated into practice. To this point, however, the discussion of New Balance as a theory has focused on its defining features. More should be said about its theoretical foundations and reasons for thinking it is a viable approach if we are to pave the way for an informed evaluation of the plan. The short answer to the question of where this model comes from is that it is constructed from elements of a number of theories, objectives, and practices associated with punishment. It draws on the scales of justice; it connects punishment with what the guilty deserve; it aims to deter crime; it broadens the use of sentences like those requiring community service and attendance in an educational program. The philosophical foundation for this sort of project is pragmatism, which invites creative, experimental solutions to problems and has us favor theories which on balance have more practical consequences than their rivals. In A Case for Legal Ethics I have argued for our being active in forging viable conceptions of the roles and environments we occupy, and here I bring that thinking to bear on the institution of punishment. Plato’s discussion of punishment in The Laws is part of an overall and elaborate analysis of law in society. Insofar as it is a view cognate to New Balance, it can be seen as lending support to the approach. Plato’s theory of punishment is closely tied to his view of the purpose of laws – the creation of virtuous citizens. This goal entails educating citizens about how to lead a life of reason which, in turn, means learning to maintain a proper balance of pleasure and pain in one’s life. Legislators, judges, educators, and

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citizens alike are all to keep in view the importance of this education and strive to use it to create a self-controlled citizenry. Plato discourses at length about how drinking parties can provide a controlled environment for the young to experience the pleasures of alcohol, the painful consequences of excess consumption, like saying and doing silly or reckless things and thus causing embarrassment to oneself, not to mention becoming physically ill. Under the supervision of a sober leader, young people can experience firsthand the nature of losing control of oneself. This experience assists them learn how to lead a life where one is in control, which is a courageous life, a life of reason, and a life in which one is in the right relation to pleasure and pain. Wrongdoing represents a failure of law and education and is committed by someone who, in effect, is out of control. In Plato’s view, no one voluntarily acts wrongly, yet we hold them responsible for their acts. Although Plato suggests nothing of the huge variety of conceptions of adjudication that enter later in the history of jurisprudence, he carves out for the judge large discretionary powers to determine how to send pleasure and pain the way of the offender to correct the soul in disorder. The judge uses pleasure and pain, as the legislator and educator do, to assist citizens get in the right relation to pleasure and pain. As such, Plato’s entire theory of punishment may be seen as a way of positioning the offender to do good and hence akin to New Balance. Much to the credit of New Balance is the way it has us treat offenders not as passive recipients of the pain or evil we cause them. Our agency, instead, triggers events that cause the offender to assume an active status as a producer of good. This model in effect says as much about the nature of punishment as it does how we think about ourselves, offenders, and society. We ourselves are not producers of evil; we are not beings who are gratified when a primitive impulse of vengeance is acted upon. Presumably, when we committed ourselves to justice, we ruled vengeance out, since vengeance knows no limits. Our model still commits us to justice but simply offers different materials for thinking about how we give people what they deserve. We do not have the evil of punishment dwell in the present and future which is the case when our focus is one of dwelling on the evil done by the offender in the past. We concern ourselves instead with the future production of good. We focus not on causing people to endure evil but to positioning them to produce good. We emphasize not the worthlessness of one’s past or present status or acts but the future worth of contributions for society and the individual’s estimation of self. It is a model that comports with some of our intuitions about our own wrongdoing and how we maintain our own conceptions of self-worth in the face of this wrongdoing. If we bring harm to another person – we insult, or wrongly accuse someone, we stand someone up, we neglect someone – our initial response is not to ask how we shall punish ourselves. We don’t ask what the right amount of evil is that we should inflict upon ourselves. We

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don’t ask whether we should detain ourselves at home for the next five evenings, whether we should deprive ourselves of dessert, whether we should restrict our socializing, whether we should take some stack of dollar bills we have saved and tear them up and throw them away. Instead we think in terms of what we can do to make up for what we have done and that something is not a report of how we intend to punish ourselves. We feel better when we are able to do that something, that good, and dislike receiving a cold shoulder instead of an acceptance of our attempt to right the wrong. We dislike the cold shoulder as a type of evil being sent our way because it highlights and perpetuates the wrong and diminishes our sense of worth. So when we think it so natural to send evil the way of wrongdoers, we certainly are drawing on no model of what seems to be the natural response when we ourselves are wrongdoers, a response of wanting to do good to compensate for the evil we cause. The cost of Old Balance, which requires offsetting evil with evil, speaks against its use and in favor of New Balance. Imprisonment is the primary way we deliver this evil to the offender, so the cost of imprisonment is very much at issue in assessing the traditional view. Our willingness to pay for it should tell us something about our commitment to the traditional model. A number of factors create a picture of imprisonment’s becoming too expensive, and, as we move to alternatives, they are consistent with New Balance. For one thing, rising prison costs, due partly to growing prison populations, take away from funds for other programs valued by the citizenry like education or medical care. Some people may object to New Balance on the ground that society and especially victims and their families will never be satisfied with treating offenders as the model requires. But it is unclear what to make of this complaint. Is social satisfaction the measure? Many people are dissatisfied with their level of income, but we are not about to distribute supplements to their income until these people are satisfied. If we believe that punishment of the traditional sort really does deter, we credit would-be offenders with the ability to envision what life would be like were they to incur the penalty. If we think we are dealing with would-be offenders of this ilk, surely we would think them as capable of envisioning what it would be like, say, to lead a life of doing good for the society as they are of envisioning what a life in jail would be like. If so, we are looking at people who wish to do what they will with their lives and who are perceptive enough to realize how they can be delayed at a long red light as they travel down the criminal path. So, if we believe that we deter with our current system of punishment, it seems we can continue to do so with New Balance; any sort of deterrence seems predicated on people’s not wanting their lives interfered with. With this additional information about some of the theory that underlies New Balance, I now ask the reader to return to the list above and consider what could be added to it or how better to sketch a life sentence on

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the New Balance model. I do think that it is a very difficult task but participating in it heightens one’s awareness of its nature, the New Balance approach, and the worth of New Balance. New Balance’s focus is on the offender’s doing something worthwhile, minimizing despair, providing conditions for hope, and being respectful. With Old Balance, the serving of a life sentence is mostly invisible to the public, so its effect of satisfying anyone’s rage or indignation is short-lived over the offender’s long life. One thing seems certain – with New Balance, the actions of the offender occur in a much more visible and public context, and the service the offender provides can supply ongoing evidence of an ongoing social response to the offence. Considerations of this sort will determine whether the scales of justice will tip on the side of New Balance when it is weighed against approaches that require doing something bad to the offender.

Notes 1. Prevent Genocide International, “Genocide and International Crimes in Domestic Courts,” 2003. . 2. “Charter of the International Military Tribunal,” 1945. . 3. CNN Interactive, “Serb Soldier Guilty of Crimes against Humanity,” 1997, . 4. Gary J. Bass, “A Look at War Crimes and Punishment,” Washington Post, 26 November 2000, B3. 5. Friends United Meeting, “Peace Connections: Sample Letter,” 2001. . 6. Ralph Summy, “A Non-Violent Response to September 11,”2002.. 7. Abel and Marsh, 184. 8. Anderson, 143-147. 9. Ibid, 16 & 20. 10. Ibid, 19 & 90.

Bibliography Abel, Charles F. and Marsh, Frank H. Punishment and Restitution. Westport: Greenwood Press, 1984. Anderson, David. Sensible Justice: Alternatives to Prison. New York: The New Press, 1998.

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Luizzi, Vincent. A Case for Legal Ethics: Legal Ethics as a Source for a Universal Ethic. Albany: State University of New York Press, 1993. Plato, The Laws, ed. and trans. Trevor J. Saunders. New York: Penguin Books, 1970.

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Chapter 14 The Execution as Sacrifice Jody Lyneé Madeira America’s national vulnerabilities revealed in the wake of 9-11 render “justice,” normalcy, and restoration important concepts. But by what means does the vulnerable nation-state restore and maintain normalcy in the face of crisis, when its sovereign jewel, the authority to legitimately kill, is stolen? Adapting René Girard’s theory of sacrifice enunciated in Violence and the Sacred, this paper posits that America retakes its killing authority through execution. It first describes Girard’s theory of sacrifice, elaborating its social nature and redemptive consequences, and exploring the judiciary’s sacrificial role. Thereafter, this paper applies these theories to execution, explicating how ritual victims are chosen. It then describes how execution redeems as it purifies and protects national borders, and outlines how the execution is constructed through witnesses, jurors, and the mass media. Finally, this theoretical analysis is applied to the 2001 execution of Oklahoma City Bomber Timothy McVeigh. This paper concludes by discussing how the State conceals this sacrificial symbolism by carefully maintaining borders and execution “visibility.” 1.

The Sacred, Violence and Sacrifice According to Girard, violence is “the heart and soul of the sacred,” which consists of “all those forces whose dominance over man increases or seems to increase in proportion to man’s efforts to master them.” The sacred is “bad” when it is inside the community and “good” when it “returns to the exterior.” The traditional end result of violence is spilt blood, which is universally impure unless it is sacrificial. This violent impurity is contagious and contaminates those who engage in violence, those who seek vengeance, and the areas and instruments in and by which they do so. Thus, “whenever violence threatens, ritual impurity is present.” Contagion ceases only after a sacrificial catharsis that involves more blood, this time that of sacrificial victims.1 Such bloody catharses are required in times of sacrificial crisis, when the sacred intrudes into the communal center, placing a society in cultural jeopardy. Each sacrificial rite is predicated on a primordial crisis, and strives to reproduce its details as closely as possible. The sacrificial rite fixes the spontaneous, uncontrollable elements of the original sacrificial crisis into the formula of enacted ritual, generating a predictable formula that removes “all elements of chance and seeks to extract from the original violence some technique of cathartic appeasement.”2 The sacrificial crisis that necessitates execution is the illegitimate appropriation of the State’s killing authority. Violence first begins when the citizen-enemy illegitimately appropriates the State’s killing authority to

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commit murder. Such a brazen act threatens the State’s legitimacy and defies taboos mark its killing authority as sacrosanct. The State, through a communal mask, executes not only to prevent an offender from committing future acts of violence, but also to purge the crisis unleashed by a capital crime. Ritual repetitions of sacrificial crises are often the center of communal festivities that mark both climax and termination. Such festivals serve as guarantors of finality and harbingers of suture, as at their culmination the crisis unites with its suture and “becomes itself a cause for jubilation.” Thus, the function of ritual is to “purify” violence and cure contagion by the “regular exercise of ‘good’ violence.” This purification is enabled by both a surrogate and a ritual victim.3 The secret behind the rite and its redemptive potential is the communal unanimity behind its enactment. 2.

The Quasi-Religious Role of the Judiciary In modern Western society, the prohibition against killing is upheld primarily by the judicial system, an arm of the State that “possesses a monopoly on the means of revenge “ and “deflect[s] the menace of vengeance.” The judicial system fulfills the functions of religion in a “primitive” society, those of taming, training, arming, and directing the defense against socially inpermissible violence. The judicial system embodies a diachronic evolution from “preventative to curative procedures.” In contrast to “primitive” systems oriented toward victims, the judicial system is oriented towards offenders, and both systems approaches victims differently; in sacrifice the designated victim becomes “the object of vengeance because he is a replacement” and not because he is the “right victim,” while in the judicial system, “the violence does indeed fall on the ‘right’ victim,” and “with such force . . . that no retort is possible.” Thus, the judiciary is an institutionalized technology to manage vengeance, an “interminable, infinitely repetitive process” that “threatens to involve the whole social body” since “the multiplication of reprisals puts the very existence of a society in jeopardy.” Moral, religious or legal imperatives not to shed blood and drastic penalties for violators protect society from vengeance. Thus, killing prohibitions are intrinsically connected to the “obligation to exact vengeance on those who shed it.”4 The judicial system does not “suppress vengeance” but “effectively limits it to a single act of reprisal, enacted by a sovereign authority.” It “rationalizes revenge and succeeds in limiting and isolating its effects in accordance with social demands.” Penal procedures and the technologies of infliction are encoded practices, embodied in law. In a State that successfully maintains its monopoly on killing authority, these legal encodings carry authoritative weight and are “presented as the final word on vengeance.” State limitations on vengeance take it out of the hands of private parties, translating it from a private act into a public ritual that becomes “the exclusive property of well-policed societies.” The entity that translates the execution from private to public is the body of the condemned itself.5

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As do sacrificial rites, our judicial system normalizes and thereby conceals its sacrificial functions; like sacrifice, “it conceals – even as it reveals – its resemblance to vengeance.” In minimizing the need for vengeance and publicizing its methods, a judicial system normalizes a very different kind of vengeance, to the point that the citizens whose justice it administers are not moved by wild displays of revenge to create new technologies of violence management or even to consider how vengeance management is otherwise possible.”6 The judicial system is a prime example of how “the religious and moral authorities in a community attempt to instill nonviolence, as an active force into daily life and as a mediating force into ritual life, through the application of violence.” Religion and the judiciary are not disparate concepts, for as “curative procedures” both are “imbued with religious concepts.” Religion “instructs men as to what they must and must not do to prevent a recurrence of destructive violence” – the central function of the judiciary. Like sacrifice and the judicial system, religion “manifests little concern about the origins of those terrible forces that visit their fury on mankind but seems to concentrate its attention on determining a regular sequential pattern that will enable man to anticipate their onslaughts and take measures against them.”7 In the judicial system, this “regular sequential pattern” acquires the form of a legal archetype, yielding model elements that constitute a crime, or sacrificial crisis. At the center of religious power is enigma; Girard even broadly defines religion as the “obscurity that surrounds man’s efforts to defend himself by curative or preventative means against his own violence.” Religion is the enigmatic quality that “pervades the judicial system when that system replaces violence.” Judicial worshippers are unaware of this enigmatic religious infusion. Their ignorance is enhanced by the positivistic rationalism inherent in judicial decisions, which opposes judicial reasoning to irrationality and enigma in general and religion in particular. Yet, this rationalism conceals the religiosity inherent in the judiciary, for religion is a tool for mediating revenge, and a functioning judicial institution processes “runaway vengeance.” In this capacity, the judiciary nullifies the need for religious mechanisms of purging vengeance, and so religion then appears senseless and silly. Thus, “the efficiency of our judicial solution conceals the problem and the elimination of the problem conceals from us the role played by religion.” Indeed, the judiciary eagerly covets the advantages that enigmatic religious qualities lend to its practices, and so colludes with religion to enable the “transcendental effectiveness of a violence that is holy, legal, and legitimate” and that is “successfully opposed to a violence that is unjust, illegal, and illegitimate.” In addition, the judicial system cultivates a theology of its own, in which it is the supreme “guarantor of justice.” Religion is thus essential to judicial authority, for it is only “the transcendental quality of the system, acknowledged by all, [that] can assure the prevention or cure of violence.”8

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Because we are blind as to the mechanisms by which religion cultivates judicial authority, we credit man for evolving technologies of antiviolence. In attempting to give man proper credit, “modern philosophers attribute the origin of society to a ‘social contract’” that is rooted in reason or some other rational basis because “they are incapable of grasping the essence of religion and attributing to it a real function.” Thus, “the failure of modern man to grasp the nature of religion has served to perpetuate its effects.” Since the teachings of empiricism have led us not to believe, religion ironically fulfills the same function through the judiciary that it does in “primitive” societies that are avowed worshippers of the sacrificial ritual.9 Ultimately, then, religion and the judicial system fulfill the same function; both humanize violence and protect “man from his own violence by taking it out of his hands, transforming it into a transcendent and ever-present danger to be kept in check by the appropriate rites appropriately observed and by a modest and prudent demeanor.” Finally, both religion and the judicial system revere violence by seeing it “as something superhuman, to be kept always at a distance and ultimately renounced.”10 3.

The Execution as Sacrificial Ritual An understanding of the religio-judicial relationship is a necessary predicate to understanding execution as a sacrificial ritual. Conceiving of an execution as a sacrificial killing requires us to move “toward an expanded concept of sacrifice.” Societies where the State executes are “localities where ritual killing no longer occurs,” where its place has been taken by another institution of generative violence like the judicial system.11 In execution, death ceases to become a magical crisis and becomes a set of regimented, mechanical processes. This mechanization of death is the key to the ritual process. Killing becomes ritualistic whenever the killer can anticipate when, how, and where the killing will take place, when unpredictable death becomes routine.12 As a media execution witness once remarked, “I guess that’s what makes it different – knowing how it’s going to happen, when it’s going to happen, where it’s going to happen.” Both sacrifice and execution “attempt to enact under controlled circumstances the ‘perfect kill.’”13 It is necessary at this point to discuss the relationship between capital punishment and execution. Capital punishment is very different from execution, being respectively a set of ritual killing practices and the actual exercise of those practices. Capital punishment as a practice stems from the perspective of the State that authorizes its application. It is a tool of curing the sacrificial crisis that arises each time killing authority is illegitimately appropriated. The State kills the citizen who kills the State. The sacrificial crisis begins with the elimination of differences, as a citizen who is subjugated to a State becomes like that State in appropriating its killing authority. The State must remedy this critical destruction of differences by reasserting its dominance, resubjugating the murderous citizen by becoming

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(legitimately) murderous itself. The sacrificial crisis ends upon the reestablishment of difference. The execution as event, in contrast, stems from the perspective of the citizen and not the State. While the State makes capital punishment available as a penal technology, it is a citizen jury that determines when it will be implemented. It has as its sacrificial crisis a specific illegitimate appropriation of killing authority. Unlike capital punishment as a practice, execution as event begins with the emergence of difference, when citizens who are superficially similar become different after one citizen seizes killing authority. Remedying the sacrificial crisis requires that these newly emerged differences become confirmed via a criminal trial that officially labels the murderous citizen “condemned,” thereby validating and exhibiting the deviant. The execution is saturated with obvious “traditional and ritualized elements” such as “the ceremonial last meal, the administration of last rites, the last words of the victim, the covering of the head of the prisoner before death, the protection of the identity of the executioner, and the dispersal of responsibility for the death.”14 The killing site is also a highly ritualized part of the execution sacrifice. Executed prisoners are effectively staked to an immobilizing object. The region around the chair or gurney becomes an intimate circle, access to which is closely monitored and restricted to agents directly involved in the procedure. The magic circle around the execution site is sacred; witnesses are statutorily forbidden to make any permanent record of that sight to carry away. In the nation-state, the deployment of violence is always moral. As United States Supreme Court Justice Stevens has stated, “capital punishment rests not on a legal but on an ethical judgment” and “the decision that capital punishment is the appropriate sanction in the extreme cases is justified because it expresses the community’s moral sensibility – its demand that a given affront to humanity requires retribution.”15 Those who execute for moral reasons oppose themselves to barbarians.16 Engaging in moral violence necessitates moral order. Civil order is uppermost in officials’ minds in modern execution routines; a warden at Louisiana’s Angola Prison “emphasizes to all witnesses . . . that there must be ‘no emotional outbursts, no obscenities uttered, no undignified behavior of any kind.’”17 Once the execution protocol has been created, the execution, like a festival, becomes tied to the potential for finality and suture. Either it will help to establish continuity or it will culminate in a disjuncture. In a sacrificially successful execution, the condemned becomes cleansed through his very expulsion and so “claims legitimacy not from his ability to disturb the peace but from his ability to restore the peace he has himself disturbed.”18

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Victim Selection We at last come to the nucleus of the execution as sacrifice: its victims. It is here that Girard’s theory differs from execution as sacrifice; its complicated mechanics of victim substitution have no direct parallel in execution, which focuses instead upon a condemned or ritual victim who must atone for his illegitimate killing. Girard does elaborate two other concepts, however, those of the “enemy brother” and the “monstrous double,” that assist in explaining how a society comes to identify which deviant citizens are “executable.” The adapted concept of “enemy brother” gains credence in light of the current scholarly focus on social distrust. Popular nationalism teaches that citizens of a democratic nation differ little in terms of their citizenship status. What differences exist are supposedly insignificant and absorbed by bonds of national fraternity. Thus, citizens are “doubles” for one another. But beneath the rhetoric, tension suffuses and disturbs this affinity, for society is structured on differences in appearance, education, ethnicity, wealth, gender, race, sexual orientation, and so on. Thus, citizens are not “brothers” but “enemy brothers” (‘brother’ is used to maintain consistency with Girard), and national fraternity and minimal difference are delicate constructions, sites of contestation and negotiation in a social system structured on difference.19 As Girard notes, “brothers are simultaneously drawn together and driven apart” by what they “ardently desire” but cannot share. I posit that this desired object is the killing authority of the State and that, as fellow citizens and enemy brothers, we always suspect that we each desire the same thing – to possess killing authority and exercise it on our own behalf – and thus must be vigilant lest one succeed in attaining it. Kinship and superficial similarity last until someone illegitimately seizes killing authority, plunging the community into sacrificial crisis. Murder merely exposes this duplicity and breaks the bonds of relation so that we may cast the killer into the role of “monstrous double.” “As soon as a community begins to regard an isolated individual as responsible for a sacrificial crisis – that is, responsible for the disintegration of distinctions within the community – it follows that this same individual is accused of violating society’s most fundamental rules, the rules of kinship.”20 The monstrous double is the model to which the ritual victim must conform. To “polarize and purge the emotions of the community,” an individual must resemble other citizens and differ from them, being simultaneously “‘double’ and ‘incarnation of the sacred difference.’” In this most terrifying of beings, the citizen and the killer are one and the same. Constructions such as “criminal” labels emphasize this burgeoning monstrosity; for one redefined as a monstrous double, his alleged killing becomes more salient to the community than his former citizen identity. When a former citizen is successfully reconstructed as monstrous double, his monstrosity is welded to his former identity so that his former ‘brothers’ literally see double in recognizing his opposing nature as human/subhuman,

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man/beast, civilized/brutal. When we look this horror in the face, it is uncannily familiar; we are terrified by our recognition of both the “me” and the “not me,” the recognition that the two can be one and thus of one’s own capacity for monstrosity. Ultimately, it is confirmation of this duality that enables the State to execute its own, producing a tragic moment in which “the father kills his son who has changed form.”21 This simultaneity of fraternal sameness and monstrous is a popular literary theme in works such as Stevenson’s The Strange Case of Dr. Jekyll and Mr. Hyde with its infamous title character that “separates into two and yet is never two together.”22 Similar conceptions of monstrous duality are present in the writings of Nietzsche, Foucalt, Deleuze and Guattari, Heidegger, and Derrida; Foucalt for instance proposes in “The Order of Discourse” and elsewhere that the monstrous “is the Other conceived of in a double that is taken for a single form” that marks a “kind of treachery to social norms.” Significantly, monstrosity is historically specific; as Foucalt notes, “those who so horribly execute the ‘monster’ . . . are themselves considered ‘monsters’ by a later age.”23 This monstrosity is mesmerizing. Most salient is not how a murderer killed, but that he killed. In morbid fascination, we review the (highly mediated) creation of the monstrous double via news stories that chronicle a crime from discovery and investigation through arrest, trial, and sentencing and ultimately to execution. As we are drawn more and more into the dark chronicle, our passionate fascination acquires the “terror and hallucination” of the “the primordial religious experience” until at the moment of sacrificial crisis “when violent hysteria reaches a peak the monstrous double looms up everywhere at once.” We may subdue our inner monstrosity by categorizing and confining its actual criminal embodiment, but we can rationalize this monstrosity only by placing it beyond the bounds of the familiar, “attribut[ing] the origin of the apparition to some exterior cause” as it is “too bizarre to emanate from the familiar country within, too foreign in fact to derive from the world of men.” Thus begins the process of alienating the monstrous double and ultimately purging him through execution so that “the turmoil then gives way to calm; hallucinations vanish.” Significantly, our fascination with monstrosity obscures the similarities between murder committed by the monstrous double and execution administered by the state, and the carefully-policed boundaries that distinguish one killing from the other. We are encouraged to “neglect the crucial aspects of the experience: its reciprocal character, its affinity with violence.”24 And who is likely to become this monstrous double? Categories from which such victims are taken include “beings who are either outside or on the fringes of society.” Marginal persons “can be exposed to violence without fear of reprisal” because “their death does not automatically entail an act of vengeance” since “between these victims and the community a crucial social link is missing” – a boon, as vengeance must at all costs be avoided. Care must be taken, however, to ensure that the victim is not too marginal;

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the victim must “bear a sharp resemblance to the human categories excluded from the ranks of the ‘sacrificeable’ while still maintaining a degree of difference that forbids all possible confusion.” If the victim and community are too disparate, then “all similarity will be destroyed,” but if the two are too similar, then “the violence will overflow its channels.” It is primarily through the criminal trial that the differences between the potential condemned and other members of the community are exacerbated, highlighted, and maintained. The “criminal” difference severs the victim from the community, while “drawing to him all the community’s violent impulses.”25 Suspects become social outsiders only after citizens follow a lengthy and explicit regimen to declare them guilty of capital offenses. Otherwise, they are indistinguishable from the rest of the citizenry. By their execution date, the condemned have long since been ritually expelled from the social community so that no communal insider must bear the responsibility for another insider’s death. In addition to being marginal, the ideal ritual victim will be a logical victim, and so it must be determined that the victim is “somehow responsible for the miraculous consequences of his own death or exile.” To establish responsibility, a community must “cultivate the future victim’s supposed potential for evil, . . . to enable him to polarize, to literally draw to himself, all the infectious strains in the community and transform them into sources of peace and fecundity.” Here we find criminal accountability, the application of Kantian responsibility and free will that emphasizes one’s freedom to choose an illegal act, and the concomitant burden to take responsibility for that act. This creed places the responsibility for a crime not on the community but on the head of the actor who committed it, justifying harsh consequences for a crime (“he should have known better”), obtaining communal consensus on the appropriate consequences of this behavior (“he deserved it because he should have known better”), and simultaneously casting the responsibility for applying those consequences outside of the community, onto the offender. After all, “it seems only logical to attribute the happy result to the victim himself.”26 Moreover, because the responsibility for the capital offense lies with the condemned, so then does the need to execute. Like violence, the sacrificial victim is “considered a polluted object, whose living presence contaminates everything that comes in contact with it.” Because the mere presence of the culprit is offensive and impure, protection cannot be effected by simply imprisoning him since the guilty party still exists within the nation even if he is separated from its society. Only death can forever remove the threat. Because the violence of the monstrous double is contagious even when contained, the double essentially becomes a magnet for communal violence that is ultimately expelled with him through the sacrificial rite, transforming “baneful violence into beneficial violence.” The processes of this transformation ushers in the redemptive mechanics of execution.

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Sacrifice, Redemption and Execution Every sacrifice is an attempt at redemption, and execution is no exception. Under the rationalistic theory of the social contract (spurned by Girard), executions renew democratic ties by cementing a feudal contract between governed and governing, confirming the efficacy of a system in which men trade their autonomy for protection from evil, giving loyalty based on faith in a state’s protective abilities. In delivering a condemned to his Maker, the state fulfills its end of the social contract, extinguishing the threat. The sacrificial ritual also creates “a compact of fellowship among the sacrificers themselves.”27 Crime is a national crisis because it threatens citizen loyalties; if the state cannot eradicate a threat, then why pledge allegiance to that state? In executing, the state strengthens itself and thereby affirms its claim to citizen loyalties. Sacrifices, then, are notable rituals with significant consequences, not the least of which is the creation of memory. “When man thinks it necessary to make for himself a memory, he never accomplishes it without blood, torture, and sacrifice.”28 Of course, this memory is both collective memory and individual memory – cementing nationalistic compact and ostensibly resolving individual crises. The act of purging a national threat provides life in enacting death in that the short-term effect of eliminating a criminal threat enables a long-term redemptive effect. The mechanics of redemption are no less fascinating. The execution engenders redemption when it is consumed by others – when witnesses hear of its completion, but particularly when they see it being carried out. The community consumes the condemned in two ways. Most ingest the news of an execution via the mass media, and so consume the condemned textually. Witnesses, however, feast by viewing the execution. Many phrases tie the act of viewing to eating; lustful men “devour” woman with their eyes, readers “consume” newspapers, and a beautiful sight is a “feast for the eyes.” When witnesses view executions, the image that is being consumed is that of human flesh, and therefore sacrificial. When a community selects a potential execution victim, it attempts to season this suspect into a palatable victim by making him conform to base perceptions of the poor, the uneducated, or the dark of skin. This transformation is effected by the State executioner as well. In “primitive” societies, the killing of an animal scapegoat in place of a king transformed sacred royalty into royalty itself.29 Likewise, for the State, sacred authority to kill is transformed into political power. When citizens consume the condemned, they feast on flesh either hidden in text or concealed from the public gaze. In war, when sacrifice is publicly celebrated, the soldier body is visible, even cherished in its heroic agonies. But when the state executes, the sacrificial body is not on public display. This illustration is a distinction between two sets of practices – one “in which the body is immediately present and its relation to social action directly observed,” and “disembodied, or textual practices in which the body is not only removed, but denied.” The visible sacrificial body is the willing

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sacrificial body. But invisibility is not elimination, for “textually organized societies can never eliminate the body from the social order despite their efforts to move it beyond the range of awareness.”30 Upon completion of the execution sacrifice, the body disappears, and so the execution must be communally realized textually via statements given by state officials and media press releases. Flesh becomes textualized; we consume not the “word made flesh” but the “flesh made word.” This textual body, consumed in common, creates a bond between citizen and state and quite literally “remakes the substance of the organism” in forever removing organs – members of the body politic – from the state. The citizenworshipper and his democratic god thus “communicate in the same flesh” – the body of the condemned.31 6.

The Redemptive Role of Execution Participants Execution participants such as juries, witnesses, and the media amplify the redemptive potential of the execution sacrifice. In execution as blood sacrifice, juries in capital cases become hybrids of state and citizen in that they embody the popular but assume the sovereign’s task of invoking killing authority. Jurors sacrifice by renouncing their role in the social collective to literally serve the community by assuming the mantle of the state. Because juries are supposedly composed of a cross-section of the community, the body of worshippers includes the entire citizenry by proxy. Jury duty is also an act of sacrificial renouncement because juries hand killing authority back to the state after pronouncing sentence. This renunciation of killing authority is a democratically renewing ritual, proof that democratic citizens are a new breed of men so civilized that they may be trusted to wield the sovereign sword against their enemies and then return it reverently to the state altar. Thus, democracy civilizes those under its rule, for citizens trusted with the most terrible of state instruments willingly surrender it. Witnesses too affirm democracy by forging group identity through sacrifice. Even unwilling sacrifices such as the Holocaust produce “affiliative groups whose members share a sacrificial history.”32 Witnesses are “gathered in a carefully monitored setting” to “see, and, in their seeing, to sanctify, the state’s killing of one of its citizens.”33 Faith in a nationalistic civil religion requires that the state be seen to act, and witnesses confirm that the execution took place. Witnesses further legitimize the execution as a moral killing; anything bloody and barbaric is by definition unfit for sight, but a clinical and routine execution may be viewed without effect. Thus, witnesses are the state’s last effort to cast a dispassionate and detached light upon the execution sacrifice. More importantly, witness verification triggers the nationally redemptive powers of execution. “No ultimate sacrifice can be remembered by those who gave it, for they are dead; only witnesses can re-present the sacrifice. “By their presence and behavior” witnesses “signify acceptance of the order to which they publicly conform,” and confirm the generative power

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of the sacrifice. Witnessing becomes an act of the state loyalty that “sustains and recreates the nation through fertility and connection rather than sacrifice and death.”34 Like witnesses, the mass media normalize the execution sacrifice and testify to its clinical, routine accomplishment. Confirming that “history is what hurts,” and “if it bleeds, it leads,” media “become the channel through which knowledge of sacrifice moves to the nation.” Media coverage is crucial because the nation needs to communicate authoritative images to citizens. Like the judiciary, the media assume “a priestly obligation to undertake coverage on behalf of the group,” ritualistically re-presenting national acts in revelatory stories brimming with visions of citizenship and national ideals. But the fiction of objectivity as a news practice preserves the illusion that “events drive coverage, that professional mediators neither encode nor invent the news.”35 Coverage of an execution thus reduces it to an event necessitated by the condemned’s behavior and consisting of his physical actions and their cessation – in essence, a moral killing. Media presence at executions is also a critical ingredient in their ritualization. Media weave complex, fragmentary execution procedures into a seamless narrative of national authority. The mass media communicates and therefore amplifies their transformative and redemptive potential, reaffirming the nation’s killing authority and fulfilling communal expectations of protection. This aids audiences in negotiating executions by placing bounds around these “perilous zones of transformation.” Communities rest better when they are told that their nemesis is dead, and media coverage acclimates us to the idea that future nemeses may be disposed of in the same rather undramatic cycle of catch, prosecute, and execute. Ultimately, through media coverage, the execution ritual emerges as a clinical, routine, and moral death safely outside the bounds of the nation and its citizenry. Audiences are safely exposed to executions by routine clinical coverage of clinical execution routines. The executed body is troublesome, and because textually organized societies can never eliminate it altogether, this body must instead be tightly bound into safe media texts. Executions become normalized; media stories provide no evidence to suggest that anything unusual occurred – that is, besides death itself.36 7.

Sacrificial Dimensions of the 2001 Execution of Timothy McVeigh A brief glimpse of the 2001 execution of “Oklahoma City Bomber” Timothy McVeigh illustrates the sacrificial dimensions of execution. McVeigh and his accomplice, Terry Nichols, illegitimately appropriated the State’s killing power by detonating a fertilizer explosive outside the Alfred P. Murrah Federal Building in Oklahoma City on April 19, 1995, killing 168 people. These deaths and the unauthorized use of killing authority necessitated atonement. McVeigh and Nichols had successfully wrested the

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killing authority from the state in order to compete with it for public attention and the need to attract others to the cause.37 What is particularly troubling about McVeigh as condemned is that he had served in the Army during the Gulf War, and therefore was a former willing sacrifice. Thus, the State was forced to transform a savior insider into a social outsider. Perhaps that is why there was must focus on a rumored third Islamic bomber, a body who was already an outsider to Middle East-wary America. With such a manifestly obvious candidate, the State could have avoided the arduous work of transforming a former sacrificial savior into an outsider. But as no such person conveniently presented himself, McVeigh’s body was slowly cast outside the national community through arrest, trial, and sentencing. The State was easily able to sidestep the question of killing one of its own as it could place the blame for the entire penal procedure on McVeigh’s own shoulders, safely rekniting boundaries that excluded both McVeigh and responsibility for his execution. McVeigh had, after all, shot first, branding him an out-law. Moreover, though McVeigh had spoken of the Oklahoma bombing as a blood sacrifice of war, he did not manifest the appropriate unwillingness to kill, the “regretful but necessary” reluctance to take lives for ideological ends, even towards the children in the Murrah building daycare center.38 When McVeigh blew up the Murrah Federal Building, he tried to literally bring the government down. Having touched and defiled the sacred, McVeigh himself became profane, unclean, and taboo. After the sacrificial crisis of the Oklahoma City Bombing, the State compelled McVeigh, a reluctant insider, to become an outsider. The interplay of double and monster can be seen in the fact that McVeigh, a Gulf War Veteran, first embodied the hero’s role of “monster-killer or executioner” as a soldier but ultimately, like Oedipus, became a monster himself.39 The state of course could not acknowledge the execution as a purification ritual but had to exorcise both McVeigh and the reason for his execution outside the national domain. The execution was constructed by the state and media as a repentance ritual whereby McVeigh atoned for his own violation under the Western dialectic of Kantian free will and responsibility. Closeted away was the purification ritual in which the State demanded a sacrifice of McVeigh to purge the taint of this sacrificial crisis in which it lost control, and to renew itself through a legitimate exercise of killing authority. Until his execution, McVeigh was held on the communal perimeter, and Attorney General John Ashcroft further restricting his media access, arguably to contain his potential to incite more reciprocal violence when generative violence was soon to be released through the execution. 8.

Conclusion: Boundaries, Visibility and Execution The outer limits of this discussion take us once more to the tenuous and troublesome borders – life/death, protection/purification, murder/execution. As transformative regions, borders must be effectively

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policed; they “allocate killing authority” and “define where violence is subject to State authority, and where it is not,” and clear borders organize killing. Sacrifice necessitates that such borders be opened to public gaze to preserve and reaffirm group identity. “When the allocation of killing authority is not settled by clear borders, groups doubt their identity.”40 Visibility permits the citizenry to view the state locus of killing authority, and media coverage apprises the public domain of when that authority is legitimately exercised, reconfirming citizenship bonds and State authority. Thus, though executions are not public events and are not televised, their occurrence is public knowledge. Public knowledge, however, is limited to the clinical execution routines of what goes where and when, and even witnesses actually present in the death house only view when the curtains are open, when the routine is progressing satisfactorily. Permitting more thorough (and bloody) knowledge would violate the requirement that a legitimate killing be clinical and bloodless, detached and unwilling. Thus, in the guise of civilized decorum, the state may exorcise both the executed sacrificial body and the sacrificial violence outside the State by establishing that the condemned incurred execution by committing a capital offense. By holding the condemned responsible for his own execution, the State never has to explain that it executes to atone for the illegitimate appropriation of killing authority. Visibility thus ironically conceals the “blood” in the execution as “blood sacrifice.” Visibility and the illusion of accessibility that it creates are key to the execution ritual of a democratic State. Unlike in war as blood sacrifice, when the president sends soldier bodies forth to war, the execution as sacrifice may be demanded by the people, embodied in a jury composed of ordinary citizens, albeit ones strategically chosen. Thus, though its final stages are hidden, the execution ritual is visible evidence of democracy’s viability, proof that the populace can be trusted with the State’s most precious and jealously guarded killing authority, a demonstration that “sovereignty can reside in the people.”41 As in Truman Capote’s In Cold Blood, “sacrificial violence is the culmination of the sense of normalcy that holds the town together.”42 The execution ritual renders visible the efficacy of democratic governance and illuminates the effectiveness of democratic justice in restoring this communally cohesive normalcy, while rendering invisible the constructed nature of these symbols. What is seen creates the implication that this is all there is to see. Ultimately, then, “the judicial system and the institution of sacrifice share the same function, but the judicial system is infinitely more effective,” and so the efficacy of democracy and its “visible” justice will go unchallenged.43

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Notes 1. Girard, 31. 2. Ibid, 49, 94, 102. 3. Ibid, 119, 121, 37. According to Girard, the surrogate victim transforms a sacrificial crisis from a private into a communal concern, but since the surrogate victim is a communal “insider,” an outsider must be found to act as the ritual victim. Ibid, 270-71. Thus, “ritual sacrifice is founded on a double substitution”: that of the surrogate victim for the community, enabled by generative violence, and that of the ritual victim for the surrogate victim. In execution, the surrogate victim, who I posit belongs to a marginalized citizen class, is exemplified by one member of this class, the ritual victim. Ibid, 102, 269. 4. Ibid, 15, 23, 20-22. 5. Ibid, 22, 15. 6. Ibid, 22, 18. 7. Ibid, 20, 23, 32. 8. Ibid, 18, 23-24. 9. Ibid, 259, 262. 10. Ibid, 134, 35. 11. Ibid, 35, 297. 12. Marvin and Ingle, 132. 13. Barnett, 26. 14. Smith, 239. 15. Spanziano v Florida, 468 U.S. 447, 480, 490 (1984) (Stevens, J., dissenting). 16. Marvin and Ingle, 12. 17. Prejean, 105. 18. Girard, 121, 134. 19. Ibid, 63 20. Ibid, 63, 114. 21. Ibid, 251, 253, 291, 164-65. 22. Gibson, 138. 23. Ibid 24. Girard, 164, 165, 161. 25. Ibid, 12-13, 39, 136. 26. Ibid, 85, 107. 27. Patterson, 183. 28. Marvin and Ingle, 134. 29. Ibid, 304. 30. Ibid, 4. 31. Durkheim, 378. 32. Ibid, 90. 33. Sarat, 7, 67, 137.

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34. Marvin and Ingle, 7. 35. Ibid, 7, 139, 141. 36. Ibid 37. Ibid, 7. 38. Ibid, 80. 39. Girard, 52. 40. Marvin and Ingle, 333. 41. Sarat, 17. 42. Conniff. 43. Girard, 22-23.

Bibliography Conniff, Brian. “Psychological Accidents: ‘In Cold Blood’ and Ritual Sacrifice.” The Midwest Quarterly 35:1 (1993). Barnett, Cynthia. “Covering Executions.” American Journalism Review, May, 1995, 26. Durkheim, Emile. The Elementary Forms of the Religious Life, trans. Joseph Ward Swain. New York: The Free Press, 1965. Gibson, Andrew. Towards a Postmodern Theory of Narrative. Edinburgh: Edinburgh University Press, 1996. Girard, René. Violence and the Sacred, trans. Patrick Gregory. Baltimore: The Johns Hopkins University Press, 1979. Marvin, Carolyn and David W. Ingle. Blood Sacrifice and the Nation: Totem Rituals and the American Flag. New York: Cambridge University Press, 1999. Patterson, Orlando. Rituals of Blood: Consequences of Slavery in Two American Centuries. New York: Basic Civitas, 1998. Prejean, Helen. Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States. New York: Vintage, 1993. Sarat, Austin. When the State Kills: Capital Punishment and the American Condition. Princeton: Princeton University Press, 2001. Smith, Philip. “Executing Executions: Aesthetics, Identity, and the Problematic Narratives of Capital Punishment Ritual.” Theory and Society 25 (1996): 235-261. Stevenson, Robert Louis. The Strange Case of Dr. Jekyll and Mr. Hyde and other Stories. Harmondsworth: Penguin, 1979.

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Chapter 15 Legitimacy and Violence: On the Relation between Law and Justice According to Rawls and Derrida Bram Ieven 1.

Introduction: Legitimacy and Modernity The problem of legitimacy – a concept that serves to justify the coercion of the law – lies in its emergence. To begin, taking “emergence” in its most palpable meaning, the notion of legitimacy has a fairly short history within the philosophy of law and politics.1 In a treatise entitled De Regimine Principum that used to be attributed to Thomas Aquinas (although the major part of the treatise was most probably written by Ptolemy of Lucca, while only the first part of the treatise, De Regno ad Regem Cypri,2 is likely to have been written by Thomas),3 a distinction is made between “legitimate force” (legitima potestas) and tyranny – thereby implying that while the force used in a kingdom is a justified, legitimate force, the force used in tyranny is an unjustified, illegitimate force. However, it was only during the sixteenth century that legitimacy as a concept really emerged on the scene of political philosophy and began to play an increasingly important role in the modern justification of the law. Montaigne, for example, refers to the legitimacy of the law in his essay “De la Physionomie.” As Montaigne puts it, the legitimate is nothing but a fiction that serves to found the truth of justice. He writes: “and it is said that even our laws are legitimate fictions upon which the truth of their justice is based.”4 It is fascinating that in his essay Force of Law (Force de loi), Derrida quotes this extremely complex remark by Montaigne to elaborate upon the difference between justice and law. Derrida asks: “what is a legitimate fiction? What does it mean to found the truth of justice?”5 These questions, along with the quote by Montaigne, prepare the reader for Derrida’s complex interpretation of the force of law, the enforceability of the law, and the concept of justice. In my article, I will take a closer look at Derrida’s concepts of justice, law, and legitimacy, and I will argue that in scrutinizing the distinction that is usually made between justice and the law (and between justification and the emerging problem of the legitimacy of violence), Derrida succeeds in opening up an intermediate space, oscillating between justice and the law, in which deconstruction (and the act of deconstructive theory) demonstrates its use for contemporary legal theory. Still, if we want to reach the predominantly modern kernel that underlies the problem of legitimacy, as we know it today, then we need to draw upon a more intricate understanding of its emergence. In modern philosophy of law a distinction is usually made between the violence that founds the law, and the violence that maintains the law.6 In its predominantly modern meaning, legitimacy maintains a rather challenging relation with the

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violence that founds the law: the problem of the justification of violence, and along with it the necessity to legitimate the violence enacted by the law, is considered to be more problematic in the first case (violence used to found the law) than in the second (violence used to maintain the law), because in the first case there are not yet any rules at hand that enable one to draw this specific distinction between legitimate violence and illegitimate violence. While Thomas Aquinas, for example, still grounds the legitimacy of royal power in the telos of nature, arguing that “there needs to be something that directs all things ordained to an end . . . so that they might achieve the due end by a direct path,”7 and hence does not really see a difference between pre-societal human life and societal human life (which to him is only natural), modern theories of law do not accept this fluent and natural transition, but rather tend to stress the rupture between what is given prior to the foundation of law, and what we have posterior to the foundation of the law. In modern political theory, the transition from the (imaginary) state of nature in which every man does as he thinks best and obeys no law, to the society with a legislation upon which all members can agree, is conceived of as a rupture and in order to go from the first condition to the second the enforcement of a set of laws will be necessary. But how can these laws be set in place without enacting a violence that in itself is not legitimate (and it cannot be legitimate since there are not yet any laws that could legitimise it)? This is a first issue we encounter when we deal with the relation between justice and legitimacy. Kant was the first philosopher who paid specific attention to the problem of legitimating originary violence. Kant explains that violence can never be legitimate but then immediately asks how it would be possible to arise from the state of nature to the civil society with its wellordered laws. If the laws are founded then they must be preceded by a violence that was not legitimated by the laws. Kant argues, however, that this violence was founded, not by the laws as such, but by the morality that is intrinsic to our common human nature. Kant argues that it is our natural tendency toward freedom that allows for the violence that installs the law. Kant concludes: Hence we must assume that nature allows for the reconciliation . . . of man’s free will with the general law of freedom; and thus we have found a natural law that allows for the violence used.8 Thus, in the last resort Kant founds the laws in human morality and legitimates the violence by reverting to a quasi-metaphysical explanation. We will see that in A Theory of Justice John Rawls takes an approach similar to that of Kant, while at the same time trying to undo the metaphysical traces that seem inherent to Kant’s approach, through the construction of a strictly imaginary original situation behind a veil of ignorance.

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A second issue is the legitimacy of violence used to exercise and maintain the law. The concept of legitimacy is often called upon in order to justify the violence of the law. The relation between justice and the law becomes especially important here. While it may indeed be true that the law enacts violence, these laws themselves are justified (and their violence legitimate) because they serve the cause of justice. The laws, it is argued, are a direct and above all concrete result of our concept of justice. In this sense, we can interpret Montaigne’s remark as the argument holding that even if the legitimacy of the violence used by the law is indeed a fiction, and the violence problematic, then it nevertheless remains the sort of fiction that is necessary to maintain – and also, found – the justice that it serves. This points us toward the modern solution for legitimating violence: violence is used for a just cause, or a just end and in this way it is legitimised. The concept of legitimacy expresses the belief that, as Goyard-Fabre puts it, “in the exertion of force there must be something that lies beyond force itself and that founds and justifies this force.”9 Supposedly then, the legitimate would function as the bridge between the exercise of violence and the justice that this violence serves. In Rawls’ theory of justice, we can see this mechanism at work. In the view of Rawls, there is a distinction that must be made between violence on the one hand, and coercion on the other. While violence cannot be justified, coercion is a form of force that is exercised to implement the laws. These laws, in their turn, are derived from the concept of justice that in Rawls’ theory was agreed upon in the original situation. In this article, I will look at Rawls’ theory of justice and the relation between justice and legitimacy in his work. Having done so, I will return to Derrida’s essay Force de loi, which, I believe, gives us a new perspective on this relation and which develops a critique on modern theories of legitimating violence, including that of Rawls. In the end, Derrida will maintain that the “the law [is] not able to ground itself on anything but itself, [and laws] are themselves a violence without fundament.” Yet it is precisely for this reason that the law remains essentially deconstructible, Derrida argues, “be it because it is founded, that is to say constructed on textual grounds which are interpretable and transformable, . . . be it because the ultimate foundation is not founded.”10 It is through this conception of justice and the law that a textual approach to law becomes possible. The law can be read and reread, it can be interpreted and reinterpreted, while each time trying to make it more just, that is to say to bring it closer to the demands of justice. 2.

John Rawls and the Coercion of Law Since Kant, the relation between law and human morality has become a central object of concern in political philosophy. John Rawls’ theory is no exception to this rule. Rawls himself acknowledges that his theory of justice is strongly influenced by Kant’s theory of right and morality, and already in the introduction to his A Theory of Justice he divulges that his work can be read as an attempt to overcome some of the weaknesses that are

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inherent to Kant’s theory. Rawls argues, for example, that while Kant held that “a person is acting autonomously when the principles of his action are chosen by him as the most adequate possible expressions of his nature as a free and equal rational being,”11 Kant did not have any way of assuring the autonomy of a person’s actions. In contrast to Kant, Rawls argues, “the veil of ignorance deprives persons in the original position of the knowledge that would enable them to choose heteronomous principles.”12 The veil of ignorance compels all persons in the original position to act on behalf of autonomous, rational principles. Moreover, it also enables Rawls to dispose of the quasi-metaphysical nature of Kant’s argument (in which people are only free, that is to say autonomous, when they act in accordance to the moral law that lies within them and in which the moral law is the foundation of the legal laws) by not reverting to man’s “nature” but remaining within the limits of what might be called a thought-experiment. While Kant’s foundation of law in morality ultimately leads us back to a typically modern version of “natural law,” Rawls’ theory seems to avoid this even though the a-historical and ideal situation that he constructs is strongly indebted to theories of natural law such as Kant’s. In Rawls’ theory the principles of justice can be found from an original position. The outcome will be that the principles of justice and the principles for a just society are agreed upon, and these principles can then serve as the guideline for concrete everyday rule making. It will be clear, however, that Rawls’ theory presents us with the possibility to found the laws (i.e. we can derive them from the principles of justice upon which all persons in the original position will agree), without being confronted with the problem of legitimating the originary violence used to found the law. Starting out from Rawls’ theoretical framework the problem of legitimating the violence used to found the law does not seem to pose itself, since the principles of justice are deduced from a thought-experiment (the original position) that holds no direct implications for the concrete actions one has to undertake in reality. Rawls’ own conception of legitimacy is well embedded in his theories about justice. However, to be able to speak of the legitimacy of the law, Rawls needs to leave aside some of the well-known principles that he brought forward in A Theory of Justice. While Rawls’ inquiry into the nature of justice is a purely philosophical and moral inquiry, the problem of legitimacy, he argues, is a political problem. In the preface of his more recent work Political Liberalism, Rawls explicitly argues that the problem with A Theory of Justice lies in the fact that the theoretical approach that was taken in the first two parts of this work did not comply with the exposition of a well-ordered society brought forward in the third part of A Theory of Justice. The difference between A Theory of Justice on the one hand, and Political Liberalism on the other, is that in the first “a moral doctrine of justice general in scope is not distinguished from a strictly political conception of justice.”13 In the latter, Rawls tries to deal with a strictly political foundation of justice. Political Liberalism thus “supposes that there are many conflicting

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reasonable comprehensive doctrines, each compatible with their conception of the good, each compatible with the full rationality of human persons, so far as that can be ascertained with the resources of a political conception of justice.”14 The question for us, then, is whether this shift in focus carries any implications for Rawls’ foundation of violence enacted by the law. After all, if it is true that in Political Liberalism Rawls deals with justice from a strictly political perspective, and if we agree with Rawls that the problem of legitimacy is first and foremost a political problem, then we can assume that the concept of legitimacy will play an increasingly important role in this book. First, I will take a closer look at what Rawls writes about the legal system and its justified coercion in his earlier work A Theory of Justice. In A Theory of Justice, Rawls defines the legal system as “a coercive order of public rules addressed to rational persons for the purpose of regulating their conduct and providing the framework for social cooperation.”15 According to Rawls, the people themselves, or at least a body representing the people, need to decide which rules are to be imposed in order to guide us in our social conduct. He writes that the authority to determine the laws and the social policies connected with them “reside[s] in a representative body selected for limited terms and ultimately accountable to the electorate.”16 This body has what Rawls calls “lawmaking power.”17 The question crucial to our case is what this lawmaking power involves. Can we say that the laws are just – or rather legitimate – because the laws were created by a democratically elected body that adequately represents the people? Surely not. The legitimacy of the laws must be found elsewhere still. According to Rawls, the legitimacy of the laws is intricately related to what we consider to be just; and the latter, in turn, is intricately related to what we all agree upon as being reasonable. What is at stake in the original position, is to make sure that all participants choose the rules that they all consider to be just. In Rawls’ view, legitimacy does not directly concern the power of the state for making laws, but rather serves to justify the power used by the state to enforce its laws. A law can only exist as a law if we can enforce it. The enforcement of the law is therefore a necessary precondition for any rule to be a law. Thus, there is a certain power, and even a certain violence, inherent to every law – just or unjust. According to Rawls, a law can be legitimate or it can be illegitimate – and thereby its enforcement can either be just (in which case we speak of coercion) or it can be unjust (in which case we speak of violence). Legitimacy here serves to draw the distinction between an unjust use of violence and a just use of violence – that is, not violence but the coercion of the law. But what is the relation between the just, or justice, and the legitimate? Rawls argues that “when these rules [that are made up by the representative body of the people] are just they establish a basis for legitimate expectations.”18 Rawls here makes a transition from justice (or the just) to the legal order (or the law). The question is “how to accomplish this transition.”

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Rawls succeeds in making the transition by, first, maintaining a formal concept of justice (as opposed to a substantive concept of justice), and second, by putting the legitimate in between the idea of justice and the rule of law, making it into – indeed – fiction that serves the truth of justice. Formal justice implies an “impartial and consistent administration of laws and institutions, whatever their substantive principles.”19 The transition from justice to the legal order is then made through what Rawls calls “the rule of law”: the idea (and in fact nothing more than the belief) that the “conception of formal justice, the regular and impartial administration of public rules, becomes the rule of law when applied to the legal system.”20 It is clear that Rawls believes that when it comes to the legal system, all that needs to be done is to apply the principle of formal justice. If this principle of formal justice is followed, the laws that are made will be just and the coercion will be legitimate. The legitimate hovers between law and justice, and has an essential relation to the force used by the laws derived from formal justice. If we now take a look at Rawls’ more recent work Political Liberalism, we can see that when it comes to linking law and justice through the principle of legitimacy, not much has changed. Although the idea of justice that, in A Theory of Justice, was attained through a philosophical reflection is now redefined to fit the contemporary political context, the justification of the coercion of law has remained largely the same. What has changed in Political Liberalism is the principle that serves as a guideline for a just society: instead of a philosophical idea of justice, Rawls now reverts to an “overlapping consensus” that can be found in a whole set of “non-comprehensive reasonable doctrines.” The political liberalism that Rawls now supports maintains that in modern society there are a number of comprehensive doctrines that all claim to be true – while contradicting each other. This need not be a problem, however. For Rawls argues that as long as these pluralistic conceptions are reasonable, it will be possible to find a sort of central democratic core in them, a sort of overlapping consensus. This is what Rawls calls reasonable pluralism. “Reasonable pluralism,” he argues, “is the long-run outcome of the work of human reason under enduring institutions.”21 Moreover, “the advantage of staying within the reasonable,” Rawls continues, “is that there can be only one true comprehensive doctrine, though as we have seen, many reasonable ones.”22 It is this reason and reasonability that will now serve as the criterion for just laws, and thus for the legitimacy of the laws. The principle that serves as a guideline for a just society has moved from common human reason to a form of reasonability that allows for a plurality of opinions. Yet in the end reason remains the core of democracy, and reason serves to justify the coercion of the law. If we look at Political Liberalism from this perspective, we might conclude that nothing much has changed. To conclude our treatise on Rawls, let us return to the problem of legitimacy again. The legitimate will now have to relate itself to the

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overlapping consensus that is attained through the reasonability of the different non-comprehensive doctrines. Ideally, the outcome of the overlapping consensus would be the formation of a constitution for government. This constitution would consist of some democratic core values upon which all reasonable people would be able to agree. Rawls concludes that “together these values express the liberal political idea that since political power is the coercive power of free and equal citizens as a corporate body, this power should be exercised, when constitutional essentials and basic questions of justice are at stake, only in ways that all citizens can reasonably be expected to endorse in the light of their common human reason.”23 We will see, however, that it is this alliance between reason and democracy that Derrida will critically question, not because he does not believe in reason, but rather because the alliance of reason and democracy also allows for negative aspects (like the violence exerted by the law) that seem to be inherent to democracy. 3.

Jacques Derrida and the Force of Law The concepts of reason and rationality are dear to Derrida. At the same time, however, the concept of reason is criticised in his work. Derrida acknowledges that reason, common reason, and the common, lie at the core of democracy. In its attempt to bring out the core of democracy through the theoretical construction of the veil of ignorance and thus to harmonize reason and democracy, the work of Rawls is certainly commendable. The aims of Rawls’ original position in A Theory of Justice, as the procedural account of Kant’s kingdom of ends, are to “account for the social values, for the intrinsic good of the institutional, community, and associative activities, by a conception of justice that in its theoretical basis is individualistic.”24 It is with the same concept of “reason” and “reasonability” that citizens can concede to the use of force (given that the exercise of force is in the community’s best interest). But can we indeed endorse the use of violence, even when the use of it may seem necessary to the whole community, or even when this violence may seem necessary to ensure the future existence of the community? What defines a community, and what is common reason? Derrida’s attempts to redefine democracy as well as common human reason, go hand in hand with his attempts to redefine the concept of justice. In order to gain a better insight into the connection that exists between these two projects, I will first look at Derrida’s definition of a democracy-to-come, which, in itself, already initiates the search for a new concept of justice and a new critique of violence. The concept of democracy-to-come captures the idea that democracy is never really there, that the project of democracy remains essentially unfinished and that a truly democratic society is never really achieved, but at the same time it is important not to confuse Derrida’s democracy-to-come with the vulgar statement that democracy remains but an “ideal” of which all present democracies are but imperfect instantiations. Quite differently from

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this sort of “idealism” – in the vulgar meaning of the word – the concept of democracy-to-come expresses the idea that democracy as such is characterised by an aporia that cannot be solved. The structure of democracy is characterised by an unsolvable antinomy. In one of his last works, Voyous, Derrida describes this antinomy that characterises democracy as the longing for both “force without force, incalculable singularity and calculable equality, commensurability and incommensurability, heteronomy and autonomy, indivisible as well as devisable and dividable sovereignty.”25 Thus, for example, democracy is the project that aims at respecting every individual in his/her singularity, while at the same time striving for the greatest possible equality among its citizens; democracy is the attempt to do justice to as many people as possible (and to do this it constructs just laws) while at the same time it uses violence to maintain these laws. Derrida’s philosophy of democracy-to-come is at once an unreserved appraisal of democracy and a critique of the violence that remains inherent to democracy itself. Therefore, Derrida does not want to do away with democracy nor does he want to do away with reason. Rather, his deconstruction aims at ameliorating democracy while diminishing the violence exerted by the law. Derrida’s essay Force de loi is an attempt to deconstruct the law and the violence of the law. One of the key notions in Derrida’s Force de loi is “force.” It is this notion, I believe, that strikes the core of his analysis of the concept of law. Derrida’s subsequent thoughts on justice can be understood in the light of this concept of force. I will therefore try to analyse this concept, of which Derrida himself so readily admits that it remains vague, even at the risk of being mystical or occult.26 According to Derrida, the expression “to enforce the law” is marked by “a direct and literal allusion to the force that assures us from the inside that the law is always an authorised force, a force that justifies itself or that is justified in its application, even if this justification might be judged unjust from another perspective or in another situation.”27 As Derrida sees it, the force that is manifested by the law cannot be extracted from the law. This force, and the authority that is connected with it, is the law. In other words, this force a priori belongs to the law. The force that is exercised by the law is proper to the law. The question that Derrida then asks is whether it is possible to distinguish between the force of law, that is the force that is presupposed in the concept of law, and a violence that does not belong to any law and hence is always unjust. Derrida writes: “how can we distinguish between this force of law, and the violence which is always considered unjust?”28 Yet immediately Derrida rephrases this initial question, and in doing so he highlights the problem of legitimacy. Is it possible, Derrida now asks, to draw a clear distinction between the legitimate violence of the law – what we might call coercion, or a just force – and an illegitimate violence – which should rightly be called violence? “What difference does there exist,” Derrida writes,

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between, on the one hand, the force that can be just or in any case legitimate (not simply as an instrument to the service of the law, but as an exertion and accomplishment of the law itself, and even of the essence of the law) and, on the other hand, the violence that is always considered unjust? What is a just or a non-violent force?29 The problem with legitimacy is that it brings violence and justice extremely close to each other. Saying that a use of violence is legitimate, is to say that it can be justified. In the end, the laws that are enforced were created to serve a certain justice, and the laws that are maintained by coercion relate to a certain form of justice. Derrida’s analysis of the force of law leads him to conclude that making a distinction between the force of law and sheer violence is extremely difficult. Like the democracy of which it is a part, the law is characterised by an aporia: the law does justice and it exerts violence, we cannot have the one without the other. The law, according to Derrida, is at the same time the possibility of justice for each singular individual and it is the space of the calculable in which every singular thing is measured with the same desingularising norm. But if this is so, how then can deconstruction ameliorate the law, and how is it possible that “deconstruction is justice,” as Derrida so emphatically remarks in Force de loi?30 In order to answer this question, Derrida reinstalls a difference between the law and justice, arguing that while the law is essentially deconstructible, justice itself remains essentially undeconstructible.31 To Derrida, justice is not something that stands on itself and is set apart from the law, as is the case in most classical philosophies of law. Rather, justice is something that is always actively differing from the law. Differently put, justice is the space created by the process of differing, and this differing opens the possibility for something new: an intermediate space is created in which it becomes possible to do justice to the absolute singularity of things – even if just for a moment. This implies, of course, that justice always presupposes the violence enacted by the law, and that it tries to mend this violence. Justice, Derrida argued in Spectres de Marx, always presupposes the “irreducible excess of a disjuncture . . . that, in always risking the evil, expropriation, and injustice (adikai) against which there is no calculable insurance, would alone be able to do justice.”32 This justice that Derrida envisions here, also forms the basis for deconstruction itself. The deconstruction of the law and the critique of violence which goes with it, are undertaken “in the name of” this specific concept of justice. Deconstruction, in Derrida’s opinion, means doing justice. It now becomes clear why a deconstructive, textual approach to the law can be fruitful. Deconstruction, when conceived of as a textual analysis,33 comes to stand for the practice of interpreting and reinterpreting the laws so that a space may be opened for a new and hopefully better interpretation of these laws. It is important to realise that this act of deconstruction is a doing,

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a practice that wants to make a difference that goes beyond the merely theoretical or institutional. Deconstruction, at its best, is a textual analysis that makes a difference. 4.

Conclusion The question finally arises whether we can ever conceive of a form of justice that would be completely unrelated to any form of law and the enforcement that these laws necessarily entail. It seems to be the contention of many philosophers that this should, in principle, be possible – and hence that reason should be capable of justifying (that is to say, neutralising) the violence enacted by the law. Arguing, as Rawls does, that the concept of justice stands on itself and that this concept should subsequently be applied to the making of law is a case in point. If we look at the matter from this perspective, we can safely say that not much has changed in Political Liberalism: even though Rawls adapts his theory to the political context, he still elaborates a principle of reason that comes first and which then serves to justify the laws and the violence they imply. Derrida, however, wants to rethink the concept of justice by pointing out the fact that the law always is justice and violence. This does not lead him to conclude that the laws are to be abolished. Quite the contrary, this insight forms the starting point for an active re-conceptualisation of the law and how we can enhance its capacity to do justice. Derrida’s project will necessarily remain a work in process, since he himself admits that it is impossible to solve the aporia that the law presents for us. At the same time, his analysis of the force of law has inaugurated the possibility to rethink the law as well as justice. Instead of a purely theoretical concept, justice now becomes something that lies in between theory (of justice) and the act (of justice). In this respect it is important not to forget that the ultimate drive of Derrida’s philosophy of law is to overcome abstract theory. His theory of justice is an articulation of the desire “to change things and to intervene in an efficient and responsible manner . . . not only within the profession, but in what we call the city, the polis, and more generally, the world.”34 Thus, to conclude, we might perhaps conceive of law as a legitimate fiction, as a basis for justice, but this justice must then always already be conceived of as the truth that tries to mend the harm that necessarily preceded it.

Notes 1. My brief history of legitimacy is loosely based upon Goyard-Fabre. 2. Aquinas. 3. See Ptolemy of Lucca.

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4. Montaigne, 1203: “et nostre droict mesme, a dict-on, des fictions legitimes sur lesquelles il fonde la verité de sa justice.” Unless indicated otherwise, all translations are my own. 5. Derrida, Force de loi, 30. 6. In Force de loi, Derrida pays particular attention to this. See ibid, 19. 7. Ptolemy of Lucca, (Book 1, attributed to Thomas Aquinas), 60. 8. Quoted in Batscha, 69: “Mithin muß man annehmen das die Natur es zulasse, in der Art, die freie Willkür der Menschen mit der allgemeinen Freiheit nach dem allgemeinen Gesetz in Übereinstimmung zu bringen; und also ist hier ein natürlichen Erlaubnißgesetz zu der angewandten Gewalt vorhanden.” 9. “Il faut donc qu’il y ait dans le Pouvoir quelque chose qui soit au-delà du Pouvoir et qui le fond et justifiant.” Goyard-Fabre, 388 (italics mine). 10. Derrida, Force de loi, 34-35. 11. Rawls, A Theory of Justice, 222. 12. Ibid, 222. 13. Rawls, Political Liberalism, xvii. 14. Ibid, 135. 15. Rawls, A Theory of Justice, 207. 16. Ibid, 195. 17. Ibid, 195. 18. Ibid, 207. 19. Ibid, 51. 20. Ibid, 206. 21. Rawls, Political Liberalism, 129. 22. Ibid (italics mine). 23. Ibid, 139-140. 24. Rawls, A Theory of Justice, 233 (italics mine). 25. Derrida, Voyous, 126. 26. Cf. Derrida, Force de loi, 20. 27. Ibid, 17. 28. Ibid, 18. 29. Ibid, 18-19. 30. Ibid, 35. 31. Cf. ibid 32. Derrida, Specters of Marx, 27 (translation modified) (page 55 in the original). 33. I will leave aside here the question whether this is the most fruitful comprehension of deconstruction. 34. Derrida, Force de loi, 23.

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Bibliography Aquinas, Thomas. “De Regno ad Regem Cypri.” In: id., Opera Omnia, book 42. Rome: Compedium Theologiea,1979. Batscha, Zwi (ed.). Materialien zu Kants Rechtsphilosophie. Suhrkamp: Frankfurt am Main, 1968. Goyard-Fabre, Simone. “Légitimité.” In: Philippe Raynaud & S. Rials. Dictionnaire de Philosophie Politique, 388-393. Paris: P.U.F. 2003. Derrida, Jacques. Force de loi. Paris: Galilée, 1994. _______. Specters of Marx, trans. Peggy Kamuf. London: Routledge, 1994. French original: Jacques Derrida, Spectres de Marx. Paris: Galilée, 1993. _______. Voyous. Paris: Galilée, 2003. Montaigne, Michel de. Essais III. Paris: Pléiade, 1979. Ptolemy of Lucca. On the Government of Rulers. (With Portions Attributed to Thomas Aquinas), trans. James N. Blythe. University Park, PA: Pennsylvania State University Press, 1997. Rawls, John. A Theory of Justice. Cambridge: Harvard University Press, 1999 (1971). _______. Political Liberalism (With a new introduction and the “Reply to Habermas”). New York: Columbia University Press, 1995.

Notes on Contributors Kirsten Ainley is a Ph.D. student at the London School of Economics and Political Science. Her research interests are international ethics and political theory, international criminal law and International Relations theory, and she is writing her thesis on ideas of agency and responsibility in IR. She thanks Chris Brown, Kim Hutchings, Peter Wilson and the attendees of the LSE International Relations Theory Seminar for comments on an earlier version of her chapter, and the ESRC and LSE for assistance in funding her attendance at the Evil, Law & the State conference in July 2004. Elena A. Baylis is an Assistant Professor at the University of Pittsburgh School of Law, where she teaches courses in international law. She thanks Larissa Bifano and Zak Shusterman for their research. Thanks also to Anil Kalhan, Don Munro, Tracy Naber, John Parry, and to the participants in the Evil, Law and the State conference at Oxford University for their comments. Roberto Buonomano lectures in the Faculty of Law at the University of Technology Sydney. He has research interests in legal philosophy, political philosophy, international human rights and international humanitarian laws. Alban Burke has been a senior lecturer in Psychology at the Rand Afrikaans University (now called the University of Johannesburg) since 1995. He is actively involved in teaching Psychopathology, Forensic Psychology and Ethics on an undergraduate and post-graduate level. Shani D’Cruze is Reader in Gender History at Manchester Metropolitan University, UK. Research Interests focus on social and cultural history of crime and gender since the nineteenth century. Main publications include Crimes of Outrage: Sex, Violence and Victorian Working Women (1998). She is at present working on a monograph, Gender, Crime and Culture in Britain, c1920-c1965, which will explore gendered representations of criminality across a range of sites – criminological, academic, professional and popular – in relation to both middle-class culture and to the historical development of a “penal-welfare system” in Britain between c1920 and c1960 and on a jointly authored monograph with Professor Sandra Walklate on murder. She also maintains an interest in gender and the history of the family since the eighteenth-century and in the twentieth-century history of middle-class leisure culture and performance. Dani Filc is a Lecturer in the Department of Politics and Government at Ben Gurion University and a member of Physicians for Human Rights-Israel.

†·tar Gözaydn is Associate Professor of Law and Politics, Istanbul Technical University, Department of Humanities and Social Sciences

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Bram Ieven studied philosophy and literary studies at the University of Leuven (Belgium). At present, he is working as a research assistant at Leiden University (The Netherlands), where he is preparing a doctoral dissertation on the relation between language, rationality, and technique in contemporary French philosophy and literary theory Vincent Luizzi is Professor and Chair of Philosophy at Texas State University-San Marcos, Member of the Texas Bar, Municipal Judge for the City of San Marcos, Texas, Editor of the special series, Studies in Jurisprudence, of the Value Inquiry Book Series, and Fulbright Senior Specialist in Law. Jody Lyneé Madeira is a 2003 graduate of the University of Pennsylvania Law School and is currently completing her Ph.D. dissertation for the Annenberg School of Communication at the University of Pennsylvania on the effects of witnessing the 2001 execution of Timothy McVeigh. She is a member of the Pennsylvania Bar and has clerked for the Honorable Richard Cudahy on the United States Court of Appeals for the Seventh Circuit. Ruth A. Miller is an Assistant Professor of History at the University of Massachusetts, Boston. She received her Ph.D. in Near Eastern Studies from Princeton University and has published articles on Ottoman and Turkish law in the Journal of Islamic Studies, the Turkish Studies Association Journal, and Studia Islamica. Her book, Legislating Authority: Sin and Crime in the Ottoman Empire and Turkey, is forthcoming with Routledge. John T. Parry is an Associate Professor at the University of Pittsburgh School of Law, and is a Visiting Professor at Northwestern School of Law of Lewis & Clark College in Portland, Oregon for the 2004-05 academic year. His articles on constitutional law, criminal law, and civil rights law have appeared in a variety of journals. His current projects include a book manuscript for the University of Michigan Press with the tentative title, Understanding Torture. He is also the project leader for the At the Interface conference project on Evil, Law and the State. Fernando Purcell is Professor of North American History in the History Department at the P. Universidad Católica in Santiago Chile. He studies issues regarding immigration, transnationalism and cultural imperialism. He wants to thank UC MEXUS for all the support to complete the research that made this article possible. For questions please write him at [email protected]. Douglas J. Sylvester, Associate Professor at the Arizona State University College of Law and a faculty fellow of the Center for Law, Science and Technology, holds an L.L.M. from New York University and a J.D. from the University of Buffalo. He has lectured extensively in domestic and

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international fora on issues of intellectual property, information technology, and business law. Professor Sylvester has published on topics of international law and information technology in journals at Berkeley, New York University, Utah, and Buffalo law schools. Rui Zhu teaches philosophy and environmental studies at Lake Forest College. He completed the article included in this volume with the support of the Freeman Grant and the kind encouragement of Professor Steven Galovich, former Dean of Faculty at Lake Forest College. Hadas Ziv is General Director of Physicians for Human Rights-Israel.