Notes on Ex-Yu Justice, Part II

Following Part I, and in advance of Part III.


The court is political  

The smartass response goes something likes this: “Of course it’s political; what’s not political? Haven’t you read the ICTY’s website? It says clearly that the tribunal was established for explicitly political reasons, too, by the UNSC, which is political by definition.” But the smartass response is a rude interruption. The above assertive prefaces monologue, not dialogue. The monologue is a story about world politics as a dog-eat-dog contest in which the strong always devour the weak with a focus on the origins of the ICTY. “Of course an international judicial institution cannot be created on the basis of an UNSC resolution alone. Of course Chapter VII of the UN Charter does not specify the conditions under which war crimes tribunals can be set up. Of course the ICTY quickly discovered that it could not bother with the question of own legality. But when have great powers ever cared about law and institutions? Might makes right, right? The ICTY is based on the consent of states – big states, not our banana republics.”

This story varies in terms of breadth and depth, but its modal conclusion is that the tribunal cannot represent anything but “victor’s justice” and/or Western and specifically American oppression of those living on the periphery. As for the motive, the supposedly aggressive prosecution of Bosno-Serbo-Croat baddies practiced by the ICTY is a function of the desire for retribution for every case of ex-Yu insolence in recent history, starting with the Trieste crisis of 1945. As discipline and punishment at once, trials are also meant to serve as a warning to the rest of the peripheral and semi-peripheral world. This type of theorizing could be described as a cross between pop-realism and pop-Marxism with a whiff of the crudest forms of pop-anti-Americanism and some other, far less respectable prejudices. While it is not exactly a closed loop, for every new newstory indexing Western and specifically American double standards and double visions in international law, the theory gains strength. Who in the former Yugoslavia doesn’t have an informed opinion on the “Hague Invasion Act”?

imgfrontisThe two accounts of the origins of the ICTY that I have on my shelf make something of an opposite case. Pierre Hazan’s book, subtitled ‘The True Story Behind the ICTY’, suggests that the weak (international justice activists) outfoxed the strong (realist diplomats and state-centric lawyers) and, against all odds, managed to turn the tribunal into such a revolutionary achievement (more on this below). Hazan is no theorist of norms and transnational advocacy networks, but there are more than a few parallels with this literature. The second account is Rachel Kerr’s 2004 book, which begins and ends with the thorny issue of “politicization,” including the issue of “prosecutorial discretion” as its special subset. Kerr has the ICTY walking on a tightrope. Sidle up too closely to justice, and you alienate those who rule the world; let politics in, even to manipulate it for judicial ends, and you lose credibility. While infinitely more nuanced than Hazan’s, Kerr’s framework for analyzing politics (it, too, chimes with 1990s IR theory, namely the “bringing international law back in” literature) follows the same binary – let me personify it a little as a contest between “realists” versus “legalists” – and it reaches the same conclusion. And judging by both the quotidian operation of the court as well as its key decisions up to 2002-3, Kerr finds, “legalists” had the upper hand.

Antonio CasseseI am not sure what stock-taking exercises based on the realist vs. legalist framework look like today (again, this post is my attempt to reconnect with the literature I stopped following years ago), but what struck me in my conversations is how adamant my interlocutors were in rejecting even the most carefully drawn legalist claims. It’s simple, the typical response goes, the ICTY is subject to constant political pressures and it shouldn’t be surprising to see so much judicial malpractice. Lest one is keen to dismiss this as “typical” ex-communist (and transitionalist) disdain for the notion that law serves to ensure that valuable social goods are distributed in ways that protect equal respect for everyone, note that some of the most critical arguments about the “hopelessly political court” are drawn from the texts left behind by bona fide ICTY insiders like (he of  those great international law textbooks), Gabrielle Kirk McDonald, Louise Arbour, Graham Blewitt, Carla Del Ponte, Serge Brammerz, and Florence Hartmann (more below). Anyone can cherry-pick a few memorable lines from a few memoirs and journalistic accounts (Hartmann, if I recall correctly: “the ICTY was formed so that war criminals could negotiate on the level of their innocence”), but what I find interesting is that these types of arguments have gained more and more adherents over the years.

Continue reading

The Manning Trial, Truth-Telling, and The Precariousness of Democractic Society

The following is a piece written as part of an interview I did at City University on the political and ethical significance of the Bradley Manning trial currently ongoing (links to potentially embarrassing video to follow).

I think that the most important thing that the Bradley Manning trial shows us is the gap that opens up between our legal institutions and our sense of right and wrong, between the law and morality. Many people around the world are shocked by Manning’s imprisonment. People are shocked partly because he has been held under conditions that the UN said violated his human rights, but also because Manning is being tried for exposing the actions of US soldiers and diplomats, including evidence of many potential and confirmed human rights violations. Manning’s supporters are incredulous and view the proceedings now taking place at Fort Meade as illegitimate.Bradley Manning War Crimes

I understand this incredulity and on a level I share it. What I want to suggest, however, is that what we are seeing in the trial of this young man is even more troubling than the corruption of the law by politics – it reveals that the law is always suffused with politics. The law is a technical code. Yes, it is also a normative system that is supposed to determine right and wrong, guilt and innocence. But it is vital that we do not forget that it is a technical code first and foremost, a code that political authorities use to justify their power. Therefore, those with the capacity to influence and manipulate the legal code will always be at an advantage, will always be able to shape that code not towards the pursuit of justice but towards their own interests. This is what Finnish legal scholar Martti Koskenniemi calls this the gap between apology and utopia. The law has its utopian moments and this is especially true of human rights law – for example, Manning supporters see him as a hero who has exposed the grievous crimes of the US government and its military, particularly in Iraq and Afghanistan. They appeal to human rights standards that are quintessential moral claims, but which sadly lack the force of political authority and so are not reliably protected. This is important, but the law also has its moment of apology, where it serves the interests of established authorities, of powerful actors like the US government.

Continue reading

UNESCO and Research Agendas Concerning Race

Antigua was settled by human rubbish from Europe, who used enslaved but noble and exalted human beings from Africa (all masters of every stripe are rubbish, and all slaves of every stripe are noble and exalted; there can be no question about this) to satisfy their desire for wealth and power, to feel better about their own miserable existence, so that they could be less lonely and empty – a European disease … Of course, the whole thing is, once you cease to be a master … you are no longer human rubbish, you are just a human being, and all the things that adds up to. So, too, with the slaves. Once they are no longer slaves, once they are free, they are no longer noble and exalted; they are just human beings.

Jamaica Kincaid suggests that abolition and emancipation are bitter-sweet affairs. For the enslaved, freedom furnishes them with a human being that nevertheless awaits a meaningful personhood. Out of slavery the master fares better, redeeming his human being from being human rubbish. Kincaid’s suggestion is insightful. After all, abolition had a vibrant nineteenth century afterlife. White abolitionists enthusiastically allowed their humanitarianism to colonize Africa so that God’s chosen could sanctify themselves through the act of saving the natives from their selves. Meanwhile, William Wilberforce et al, convinced that slaves were human biologically yet lacked the social and cultural competencies of humanity, looked on fascinated at the experiment of self-government in Haiti. From this point onwards all future failings would be attributed to the epidermis, not the colonial relation. Presently, argues Kincaid, the landscapes of the old Caribbean plantations have been consumed by a white tourist gaze that has once again disavowed the living legacies of enslavement and colonization and denied meaningful personhood to its peoples. What remains of these places and peoples is only an “unreal”, picture-book beauty.

What are our narratives of race and racism? Whom do we follow in order to tell the tale: the masters or the enslaved – the humanitarians or the “sufferers”? Which tale confesses the episteme –the scientifically valid study – of race?

The 1950-51 UNESCO “statements on race” answered such questions in favour of the master’s narrative. Announcing a new era in human understanding after the terrors of war and irrationalities of genocide, the main purpose of the statements was to separate the “biological fact” of race from its “social myth”. The biological fact in and of itself was rendered harmless, pertaining only to “physical and physiological” classifications. Thus genetic inheritance, it was affirmed, could have no bearing on mental or cultural competencies and capabilities. Conversely, the social myth of race was considered extremely dangerous in that it rendered cultural difference as biological thus sundering the “unity of mankind”. This myth had to be dispensed with; hence ethnicity – as a social/cultural classifier – was proposed as a preferable classificatory regime to that of race. Ethnicity, after all, had not been tainted with supremacist hierarchy and could signify instead non-hierarchical diversity.

Although the scientists who collectively produced the statements on race were by no means all white, the majority hailed from Western academies. And the particular kind of anti-racism evident in UNESCO’s statements had already been formulated by famous Western anthropologists such as Franz Boas. They had sought to undermine scientific racism on its own grounds, i.e. by proving the un-scientific nature of the social myth of race. And this endeavour required debunking racialized identity – that which confessed their legal and natural inequality – as myth not fact. However, as part of this manoeuvre these identities had to be subsumed under a harmless social science of ethnic categorization. While this move redeemed white identities, it de-politicized the meanings of the sufferers’ cultural complexes and complexions, extricated them from inherited hierarchies of power, and thus segregated them from the inherited and living struggles against (post-/neo-)masters. In short, as Alana Lentin puts it, the effect of the statements was to separate race from politics.

Continue reading

Swami Vivekananda: An Outsider’s Ramblings

swamiEarlier this month I visited New Delhi’s Ramakrishna Ashram for the first time.  What drew me there was the exhibition on the life of Swami Vivekananda (a.k.a., Narendra Dutta, 1863-1902). The exhibition, inaugurated a few months ago by the Dalai Lama, celebrates the 150th birth anniversary of the saffron-clad monk who is India’s Great Man -“second only to Ghandi,” as I was told more than once.  Compared to most other historical exhibitions I have seen in this country, “Vivekananda: A Prophet of Harmony” is tip-top, as measured by functioning A/C and lighting fixtures, savvy graphics panels, contemporary wallpaper posters, new dioramas, and an interactive exit quiz intended for schoolchildren.  Plus it’s relatively crowded. Over the course of an hour or two I spent there on a Saturday morning I counted a couple of university students (probably taking a short study break from the nearby library), a few senior citizens, half-dozen sadhus (among them, two Europeans and an Indonesian), and one large middle class family visiting the capital city from Tamil Nadu.  “You must see the film,” said the moustached paterfamilias to me.

His reference was to “9/11: The Awakening,” a 15-minute computer-animated piece on a speech Vivekananda gave on 11 September 1893 at the World Parliament of Religion in Chicago, which was held in conjunction with the World’s Columbian Exposition.  Starting with a scene straight out of The Titanic, the film depicts the monk’s transoceanic crossing, and how he bowed to Saraswati, the goddess of learning, before taking the podium.  “Sisters and brothers of America,” Vivekanada’s opening line, is known to every educated Indian person, but “the speech” in the short film appears to take from multiple speeches the monk gave in Chicago, including the second (“Why We Disagree,” September 15) and the third (“Paper on Hinduism,” September 19) are the richest.  By all accounts, Vivekananda’s discourses on religious tolerance and unity, mutual recognition, India, and Hinduism were a big hit (it suffices to consider the tumultuous applause he received multiple times from the audience of 4,000 – or 7,000 if you include the overflow halls of the Art Institute).  Chicago treasures these memories today.  A stretch of the Michigan Ave (at Adams St) is now the honorary Swami Vivekananda Way and a statue of the saint, taller than the one at Delhi’s RK Ashram metro station, adorns Chicagoland’s premier Hindu temple in Lemont.

According to the standard historical narrative, Vivekananda was the first Indian/Hindu thinker to introduce Hinduism and the Indian/Hindu understandings of tolerance, peace, and justice to Anglo-America and the European continent – ideas that would “conquer the world,” as he would put it (“It is my ambition to conquer the world by Hindu thought – to see Hindus from the North Pole to the South Pole”, 1897). The Chicago speeches and other overseas interventions carried by the swamiji established a number of inter-civilization bridges, both big (the global spread of Vedanta philosophy and yoga) and small (Nikola Tesla’s vegetarianism, celibacy, and a possible re-consideration of the mind-body problem). Vivekananda’s speeches and writings, the narrative goes, “awoke” India from its slumber (“For the next fifty years let Mother India be your God. Serve your country as you would serve God, and India will awaken”, 1897).  His “modernized” version of the Indian/Hindu thought inspired “social reform” at home, while helping raise awareness about India’s anti-colonial struggle abroad.  No less important, he founded the Ramakrishna Mission (now the main publisher of his writings) and the Vedanta Societies [1], which continue to spread his teachings to this day.

Continue reading

American Vignettes (I): Totalitarian Undercurrents

The airport is a totalitarian space; sometimes the truth is hyperbolic.

You re-enter the United States, land of your birth, as part of the stream of arriving passengers. It is an everyday experience. You leave the airplane slowly, on stiff limbs, trickling with the mass of travellers into Newark airport.

The imperatives are issued as soon as you enter the terminal building. No smoking. No cell phones. Stand in line. Fill in your declaration form. Foreigner here. Citizen there. Wait behind the red line till you are called. The armed immigration officer checks your papers, holding the power to pronounce your worthiness to enter this sanctified space.

Border Control

With the imperatives come the questions. Where are you coming from? Where are you going? As if the answers are clear. As if these are simple questions. The man with the gun, holding your passport, asks, “Where are you flying next?” But he already knows and he answers for you, “Chicago, on Friday.” This is a test.

“What were you doing in London?” You answer but the officer is not interested, he looks at you with an unarticulated accusation, why would you leave your homeland? Your suspect status is confirmed when he asks, “How long are you staying?” Until you please the armed man with your answers everyone is a foreigner no matter where they were born. Continue reading

Symptoms Worse Than Death

The “daughter of India” died in a hospital in Singapore yesterday, causing shockwaves around the globe and placing India on the verge of a violent implosion. Whilst rape had become a matter that women were told that they had to contend with in their everyday lives, that they must make it safer for themselves by not being alone after dark, by not dressing provocatively, and by not drinking or acting in a manner that is ‘lewd’ and ‘unladylike’, especially in North India, something about this case has led to a national uprising of unprecedented proportions. People have taken to the streets, New Year eves’ parties have turned into mass commemoration events, and the Internet is positively ablaze with news, blogs, and posts about this nameless woman whose impact on Indian politics today cannot be exaggerated.

India has had the distinction of being labelled the worst country in the world for women and Delhi is often called India’s ‘rape capital’, so perhaps it is not surprising that a 23-year old woman was gang-raped on a bus by six men on the way home after watching The Life of Pi with her boyfriend. It is perhaps also not surprising that the rape was brutal, that a metal rod was shoved into her vagina, that the men took turns at “having a go” and finally got rid of both her and her male friend by throwing them out of the window of the moving bus. What is surprising, however, is the reaction. Why has an event that may even be classified as mundane garnered so much attention and prominence?

Many on the so-called Left in India have proclaimed that the case has been given such importance only because the woman was (ostensibly) middle-class and it is always a shock when it happens to “us”, not least when it happens in a manner this horrific. Most of the mobilized youth claim that this was the last straw in what has been a devastatingly protracted chain of brutalities against women. The cynics argue that reactions such as these are tokenistic gesture that will change nothing but help those protesting come together in a moment of collective catharsis, share in a feeling of shame and sorrow not unlike that experienced when Pakistan defeats India in a cricket match. For me, the answer to the question posed above is ultimately immaterial. Yes, the woman was not a Dalit or Adivasi, and crimes against the poor in India vastly exceed those against the rich. And yes, the injustices perpetrated against the rich, powerful or established have historically been at the forefront of media reporting and government agendas, as was most blatantly obvious in the case of the Mumbai attacks in 2008. And indeed, it is unlikely that there will be any overwhelming change in either attitudes or policy towards women in the immediate aftermath of this insurrection.

In light of this, should we just lull ourselves into a state of callous complacency and churn out platitudes about the state of our society? Those who want to are welcome to squander away both hope and perspective. For those who recognise that the path to any significant change is thorny but may yet render itself navigable, some acknowledgement of the conditions that have made gender-based violence possible and continue to make it possible, even run-of-the-mill, is in order. An awareness of how we ourselves, albeit unwittingly, reproduce these conditions and help engender systemic violence that is both symbolic and ‘real’ is also urgently needed. We must be cognisant of the fact that India is a deeply conservative society and the ‘opening-up’ of the economy since 1991 has witnessed a patriarchal backlash in the face of rising inequity, the collapse of the extended family and the disappearance of any social welfare. Those who have placed the blame singularly on “Indian men” and our “backward culture” – and who think revenge in the form of capital punishment and castration is the only solution – fail to take into account how deeply embedded they are in this patriarchal order and how readily they are partaking of a discourse that is both misogynistic and short-sighted.

The calls for castration are symptomatic of an acutely phallocentric order – where a man’s ‘masculinity’ is considered his greatest pride, and the source of this masculinity is none other than his reproductive organs. Similarly, the widespread proclamation that “rape is a crime worse than murder” and must be punished accordingly has a patently sinister side to it. Is a woman (or man for that matter) who has been raped not entitled to a life? Is she “worse than murdered”? Is it the “defilement”, the snatching away the “honour” and “purity” of a woman that so bothers us? It is worth remembering that the woman who died yesterday, who the Indian government in yet another meaningless and flippant gesture has called a “martyr” and “Delhi’s braveheart”, desperately wanted to live. She had been “violated” by six men in an ordeal that lasted over an hour, was on life-support, but not, in her own opinion, worse than dead. She was only (worse than) dead after she died.

The protests in Delhi and around India contain within themselves a latent emancipatory potential. But in order for this to amount to anything, even something as pedestrian as allowing women to negotiate public spaces in Delhi without constant threat of harassment, we must think about how our subjectivity as women, men, and citizens is (re)produced. This is the only way we can build up some resistance to the “common-sense” we are invariably brought up with. We need to start problematising the taken for granted assumptions that our heteronormative order inflicts upon us everyday, most importantly the implicit belief that women are “less equal” than men. The contours and manifestations of this tacit hierarchy may be different in the West from those in the global South, but the substance remains largely the same. As always, the words of anthropologist Barbara Diane Miller resonate deeply: “We must not forget that human gender hierarchies are one of the most persistent, pervasive and pernicious forms of inequality”. Change will not come easy.

A Global Story of Psalms 68:31 | Against the Provinciality of the Twenty Years Crisis

‘Moses and his Ethiopian Wife’, by Jacob Jordaens, c. 1650

Princes shall come out of Egypt; Ethiopia shall soon stretch out her hands unto God

Psalms 68:31 is part of the global story of colonialism, enslavement, the “civilizing mission” and self-liberation. It is a story that is central to the Twenty Years Crisis that constitutes the originating point of International Relations as a self-proclaimed discipline. But it is a story that is largely absent when this originating point is commemorated.

We can pick up the story of Psalms 68:31 with the King James version of the Bible, translated into the vernacular in 1611. At this time it is practice to denote things African through the name Aethiops. More than just a polity south of Egypt, Ethiopia also encompasses Black Africa as a whole. By 1773, catechisms are being developed around Psalm 68:31 that directly address African enslavement in the Americas and the prospects of abolition, emancipation and liberation.

There are two key interpretations. One, cultivated by white abolitionists and subsequently used by Europeans who embark upon an African “civilizing mission”, holds that it is they – white/Europeans – who are God’s children. Hence, it is white/Europeans to whom Ethiopia is stretching for her hands for deliverance from slavery and primitivism. The other, cultivated by the enslaved and their downpressed descendants, holds that the Bible is their story –  the “half never told“. Africans will therefore righteously deliver their own selves from bondage.

The first catechism appears as early as 1773 in the letters of Anthony Benezet, a French-born Quaker living in North America. Scouring through the Bible to find  divine authority for the abolitionist cause, Benezet notes: “beloved friend, the passage we are seeking for is Psalms 68, 31.”; and “the people called Ethiopians are definitely African negros due to Jeremiah 13,23 – “can the Ethiopian change his skin?”. Abolitionists – especially British ones – are most concerned that the enslavement practised by white and European “Christians” would denigrate their status as the most civilized amongst humanity. By Benezet’s time, it is already a belief amongst the intellectual caste of  white/Europeans that they are the people chosen by God to express his Providence, through commerce and colonisation.

Continue reading