Crímenes contra la humanidad: Justicia global y el discurso de los Derechos Humanos
| Autor | Laura Bernal-Bermúdez |
| Cargo | LLB Pontificia Universidad Javeriana (2004-2010), MSc Human Rights from the London School of Economics and Political Science (2011-2012) |
| Páginas | 17-38 |
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"A further objection lies in the fact that the laws and principles of humanity are not certain, varying with time, place, and circumstances, and according, it may be, to the conscience of the individual judge. There is no ixed and universal standard of humanity"1It may probably be too late to question the use of international law to secure the protection, respect and guarantee of human rights. This has been the path chosen by the international community and has provided the framework where all debates about accountability are found. Although some have questioned the restrictions of international law to address human rights abuses, the debates are still within the framework of this body of law. However, there is a particular question to be asked about the incompatibilities of international criminal law and the human rights discourse. Some clarity on these incompatibilities could not only explain why international law has proven to be insuficient to address certain phenomena, but it can also show the true dimensions of the struggle that civil society and human rights activists are facing when they use international criminal law to channel their requests for justice.
This paper has two units of analysis: the assumptions underlying the human rights discourse and the assumptions behind international criminal law. I use the concept of crimes against humanity to analyse how these two units of analysis interact because, in my opinion, this is the closest that the legal language has been to incorporating ‘humanity’ as a community of justice, and it provides a good scenario to examine whether this closing gap in language shows a trend towards a new paradigm of justice for human rights abuses based on a ‘political community of justice’ that exists beyond the territorial boundaries of the nation state.
The human rights discourse has been justiied by the need to move past the restrains and impunity that arose from nationalism and citizenship rights. Mainly moving past the limitations that came with protection arising solely from belonging to a sovereign com-
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munity grounded on the nation-state. In this sense, it has looked to overcome the ‘natural indifference to others’ and our natural disposition of caring only for those who are close to us.2The latter by addressing the issue of membership and trying to portray a legal order that surpasses state boundaries, and is theoretically based on the existence of a political community grounded on our membership to humanity, on the equal concern and respect paradigm.3This discourse has been materialised, amongst other, through international law. Philosophically, international human rights law was grounded on a more broad understanding of membership, which was supposed to move past territories and borders and into the domain of a common humanity.4However, some have questioned the capacity of international human rights law to move past the powerful concept of state sovereignty where international law is embedded.
When international criminal law started using the concept of crimes against humanity, this seemed to be evidence of the success of the human rights discourse in shaping human rights law around the concept of humanity. By qualifying certain crimes as crimes against humanity, it has been argued that humanity acquired a clearer sense of community since it was represented as a ‘cogent interested group or party.’5Nonetheless, as this paper will suggest, international criminal law may not have been able to push the human rights agenda forward, because the nation state is still the organizational principle behind its implementation as a mechanism to prosecute gross human rights violations.
Considering that the added value of the human rights discourse lies in its potential to reshape and modify borders and therefore turn
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(inter)national law into ‘intermestic law,’6and to create communities beyond nation states, the failure to ind a way to move past this ‘territoriality limitation’ demonstrates a law in the incorporation of human rights into the (inter)national legal and political order, which greatly affects their relevance.7
As stated above, this paper will argue that although international criminal law has been imagined as the scenario or theatre to reinforce the existence of a ‘political community of justice’ based on our common humanity, it has not been able to displace the concept of state sovereignty. The overall question that will be addressed in this paper is if the use of international criminal law has contributed to move human rights law from ‘international law’ or ‘transnational law’ to ‘intermestic law’ and therefore had any impact on the existence of a ‘political community of justice’ found beyond the nation-state.
In order to answer this question, section 1 will explore the discourse surrounding crimes against humanity and the way in which it refers to humanity as an existing ‘political community of justice’ that constitutes a breakthrough and a rupture of the paradigm of sovereignty. Section 2 will show the inconsistencies in this ‘rupture of the paradigm.’ Section 3 will provide some evidence of international criminal law still serving the interest of a community of justice grounded in the nation-state. Last section will provide some concluding remarks.
First, a preliminary clariication: The object of this research is not to negate or ignore the changes in the conception of sovereignty that have come with the implementation of human rights law, nor to disqualify the value of holding individuals to account for gross human rights violations. It is merely to question whether international criminal law can succeed as a means of championing the agenda of human rights, by creating law around the existence of a global ‘political community of justice.’ This paper will also not question whether the mechanisms of ‘global criminal justice’ have
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obtained justice for victims or have had an impact on impunity. It is only a qualitative study that seeks to explore a topic that has not been studied in depth and produce some insights about it for further exploration.
When the ‘international community’ decided to qualify certain acts as crimes against humanity, it was reinforcing the idea of humanity as a ‘global community of justice.’8Although some have argued that crimes against humanity do not presuppose the existence of humanity as a political community but merely as a group of individuals acting as an interested party, not being represented in any way by the global institutions of justice,9this has not been the predominant position in the literature nor in the legal order established for the prosecution of these crimes.
In fact, the idea behind the legal category of crimes against humanity10was to prosecute gross human rights violations that ‘shocked the conscience of humanity.’11It was grounded on the idea of administering justice in the name of humanity,12therefore appealing to a notion of ‘community’ that transcended national boundaries and that was grounded on a cosmopolitan world view, which implied that "[t]he ultimate units of concern are human beings, or persons-
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rather than, say, family lines, tribes, or ethnic, cultural or religious communities, nations or states…"13Not only did the supporters of international criminal law resort to the idea of administering justice in the name of humanity, but they also embraced the potential for community -building that surrounds criminal law, i.e. its particular ability to consolidate the identity of a group through truth telling and the recognition of common values.14In this way, the appeal to the violation of the ‘standards of humanity’ or the ‘law of humanity’ was meant to consolidate the identity of ‘humanity’ as a group entitled to secure justice for the atrocities that had been committed.
However, in the quest to expand the bonds of solidarity and concern amongst people, and of expanding the membership, the ‘international community’ was also challenging the relative value of sovereignty. The incorporation of crimes against humanity into a legal framework intended to entrench the idea that those entitled to consideration in matters of justice were not only fellow citizens, but also all human beings,15therefore challenging the boundaries of sovereign states.
It was the recognition that there was a different order of justice that had been violated, which outgrew the communities bounded by citizenship. Using Hannah Arendt's16words, the existence of these crimes meant that "…an altogether different order (was) broken and an altogether different community (was) violated". Although as will be examined in the next chapter, there are reasons to be sceptical about whether the inclusion of crimes against humanity in the legal framework of international criminal law has actually been able to push aside the principle of sovereignty of the nation state, there are those who have interpreted the category of crimes
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against humanity as paradigmatic and a breaking point in history where the human being is placed before state sovereignty.17
Margaret McAuliffe deGuzman18argues that crimes against humanity are the result of a decision to relinquish sovereignty, which "…stems from the conviction that such crimes violate not only the individual...
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