By BOYD VAN DIJK
Review of Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law, by Margaret M. DeGuzman
Oxford: Oxford University Press, 2020
The shocking death of Breonna Taylor—and that of many others like her—has recently brought thousands of people to the streets in the United States to speak out against racist police brutality. The African American medical worker was killed by three Louisville police officers who blindly fired a dozen rounds into her home. In demanding justice for black women who have been victimized by racist police brutality, the #SayHerName movement has both demanded attention for Taylor’s case and structural political change. These demands have been taken up by leading Democratic politicians, including Senator Kamala Harris, the newly-minted candidate for the vice-presidency, who has voiced her support for Taylor’s case by arguing that the responsible police officers need to be charged. In the meantime, Taylor’s family has successfully pressured the city of Louisville to pay "historic" reparations, but activists consider this only a first step towards ending impunity and systemic racism in the United States.
Despite the moral outrage about Taylor’s death, few protestors have invoked the language of international (criminal) justice. The same is true for those who took the streets after George Floyd’s brutal death in May. Whereas Malcolm X in the 1960s tried to solicit global support to charge the US government with human rights violations before the United Nations, many of today’s activists leave the weapon of international law untouched. Even those who protested outside of the US—in Latin America, Europe, and so on—to address systemic racism have continued to frame their dissent domestically if not globally, rather than inter-nationally. Like US activists, they mostly frame racist police brutality in the US or elsewhere as a violation of domestic norms, rules, and/or laws, rather than as an international crime.
This raises the question whether Taylor’s murder, and that of other victims of racist police brutality, really shock the "conscience of humanity" in ways that would enable punishment at the international level. Ill-informed observers might suggest that the three police officers from Louisville should be extradited to The Hague—where the International Criminal Court (ICC) is located—if US authorities remain unwilling to prosecute them. Far more sensibly, human rights groups have argued that states which do support global justice (the US has not ratified the ICC’s Rome Statute) should consider filing an international arrest warrant involving US defendants. For example, they have tried repeatedly to file universal jurisdiction complaints against US torturers from the so-called "War on Terror." Under such a ruling, the three police officers might be brought to justice on territory outside of the US as states have tried with African and Latin American génocidaires.
The American legal theorist Margaret DeGuzman has recently come out in support of this argument—no matter how utopian its premise might sound at a time of high Trumpian nationalism. In her fascinating book Shocking the Conscience of Humanity, she dives deeper into the debate of international criminal law and its future by exploring when, and under what legal conditions, criminal courts and scholars justify prescriptive authority by asserting that certain crimes shock humanity’s conscience so badly that international punishment is required. In her detailed analysis one can easily find reasons for why the logic behind their assessment of gravity is often unclear or theoretically inconsistent. The book’s central argument—that undertheorized uses of gravity to justify legal decisions threaten the regime’s legitimacy—is theoretically sophisticated but falls short historically.
DeGuzman’s wide-ranging analysis is structured around several themes that explore the role of gravity in international legal politics. She demonstrates that the concept of gravity has been used for myriad purposes: for prohibiting actions in treaties, establishing criminal courts, imposing punishments, and limiting the rights of defendants. Most famously, in 1961 an Israeli court used gravity to reject Adolf Eichmann’s motion to challenge his illegal abduction from Argentina. The presiding judge reasoned that the Holocaust-related crimes with which the Nazi Schreibtischtäter was charged were so grave that accountability was more important than his habeas corpus rights as a defendant. This critical precedent was later utilized by international courts to adjudicate cases despite the defendant’s illegal arrest—one of the many examples of gravity shaping the practice of international law today (146).
Although courts and scholars often refer to the scale of atrocities, they rarely do so in a way that explains what it takes to shock humanity’s conscience, or to what ends punishment should be directed, let alone what their political significance should be. The ICC’s jurisprudence, like that of other international courts, tends to depict gravity as a judgment that is independent of institutional goals (14-15). Such "undertheorized uses of gravity" threaten in De Guzman’s view the legitimacy of the project of international criminal law as a whole. When ICC prosecutors invoke insufficient gravity as a justification for not investigating crimes, she argues they run the risk of triggering criticism for gravity’s malleability being used to mask hidden political agendas that undermine the presumptions of universality and justice (6).
To prevent this, DeGuzman presents a utilitarian argument by demanding greater focus on preventing harm to human dignity, stressing the importance of prevention (31-32), and lowering the threshold for non-large-scale-suffering (e.g., Taylor’s death). While doing so, she places these elements into a larger context whereby the "global community’s priorities" will be considered—whether by stigmatizing aggression in 1945 or abolishing racist police brutality now. DeGuzman’s defense of liberal cosmopolitanism does not provide an immediate answer to the most difficult question: of how to determine its goals and values. Instead, she theorizes a Habermas-ian process of dialogue in which both courts and scholars explain their claims as transparently as possible in order to increase conceptual clarity. Gradually, this dialogue should "elucidate global values" and promote the cause of global justice (4-5).
DeGuzman’s defense of international criminal justice deserves credit at a time of escalating attacks against the ICC in particular. Trump’s recent declaration of war against the court by declaring sanctions on two of its members of color appalled international lawyers. It signified the first time that any US administration has used the weapon of sanctions to intimidate ICC prosecutors from investigating US conduct. For better and for worse, the ICC remains one of our few symbols of international legal order that inspires hope and deserves support in the face of illiberal obstructionism. At the same time, we should be careful not to become complacent and present nostalgic narratives of the court’s past that do damage to our understanding of its modus operandi.
DeGuzman argues that gravity is at the heart of the project of international criminal justice. But where does the concept originally come from? What has shocked humanity’s conscience in the past—and for what reasons? Who has first coined this category—and who defined it later? For DeGuzman, gravity’s conceptual development took a great leap forward when Justice Jackson’s pleaded at Nuremberg after the Second World War in favor of prosecuting Nazi crimes by means of gravity-related notions (1). She also claims that references to gravity from before 1939 did "not relate to atrocities" but to "our common humanity" (34). This view of history is problematic, though.
The historian Dirk Moses, based at the University of North Carolina, shows in a provocative forthcoming book that public concern about atrocities was already well developed long before Hitler’s rise. By recovering the origins of the concept of genocide, he shows how the vocabulary of "shocking humanity’s conscience" has always operated far more exclusionary and hierarchical than DeGuzman admits. The language of "transgression" was already well developed and widely present in the nineteenth century, if not earlier. It often targeted violence and exploitation in Europe’s colonial empires.
Like many other legal scholars, DeGuzman narrates a genesis story of international criminal law that begins with the failed trials after the First World War and the emergence of the Nuremberg and Tokyo Trials after 1945, ending with the successful establishment of the ICC in the 1990s as the fulfillment, the epitome of liberal cosmopolitanism (35, 196). This uplifting if not sanitized version of international legal history blinds us to the discipline’s deeper historical mechanisms. We get to know very little, for instance, about the historical forces that drove international criminal law forward. Who claimed the right to define the so-called "civilized conscience"? Which processes—political or otherwise—determined its meaning? And which acts were hidden from this regime of gravity?
Some historians start their narratives of humanity’s conscience with the debates in the early modern period among Spanish Catholic priests about their country’s conquest of the indigenous empires of Mexico and Peru as their intellectual starting point. As is well known, Bartolomé de las Casas indicted Spanish rule and was shocked by the massacres and exploitation of indigenous peoples. He criticized the Spanish empire but did not oppose it. In some ways, De las Casas’s argument in favor of humanitarian empire lies at the origins of nineteenth-century humanitarian action pleading for the abolishment of the slave trade—which hints at imperial lineages of today’s legal vocabularies which DeGuzman tends to underappreciate.
Up to the mid-eighteenth century, trade in African slave labor was not shocking to most Europeans, nor did there exist any such notion of "common humanity." Invoking public conscience often came to refer to humanity in the law’s protection of the common good, property, and the individual’s freedom. What it did not mean, was a critical attitude towards empire as an allegedly emancipatory project. When by the late eighteenth century the slave trade had provoked resistance for a number of different reasons—and in the name of Europe’s self-imagined conscience and civilization, the answer to the atrocity was not to abolish European empire and prosecute those in support of it. Rather, it was to eradicate slavery and regulate "lawless colonialism" of private corporations (e.g., the East India Company) through reforming empire in light of those ideals.
In this period, the British conquered and annexed various parts of the globe to "protect" indigenous populations from European settlers who were trafficking them as forced laborers.
It was a "rage of order," to quote Lauren Benton and Lisa Ford. In reforming empire, nineteenth-century British imperialists sought to impose "order" while driving another wave of radical imperial expansion forward. One of the drivers behind this development was the humanitarian movement’s struggle against the slave trade and a number of other humanitarian campaigns such as ending Christian persecutions in the Ottoman empire. Its protagonists reappropriated parts of an older humanitarian vocabulary and posture in ways that would prove historically transformative. It helped to bring about Britain’s decision to abolish the slave trade in the early nineteenth century and to start employing the Royal Navy as a weapon to enforce this regime. Strikingly, most abolitionists thought that ending slavery did not mean withdrawing from colonial territories, but to reform if not expand humanitarian empire.
Their solution to the moral problems of their time was to make empire great again, not to throw out it with the bathwater. The utopia of imperial governance had to be pursued through commerce as a trust for to be civilized non-Europeans. When King Leopold broke this trust by brutally exploiting Congo’s indigenous, Europeans reacted in shock. However, neither apologists nor critics of the Belgian King were willing to give up their commitment to empire as the best device for achieving moral progress. Critics believed that King Leopold’s crime had betrayed Europe’s civilizing mission by mistreating his Congolese subjects. These were to be uplifted, not tortured or exploited, they argued. Like so many other humanitarians, Europeans did not envisage self-determination for Africans as a solution to the underlying problem of a lack of "civilization," or, in more recent days, of "development."
This language of civilization and conscience did not die with the shock of the First World War, or with the horrors of trench warfare in "civilized" Europe, nor with the ensuing rise of anti-colonial movements. In fact, the vocabulary was revived by the Allies as they categorized non-European peoples being "unfit" for self-rule and racially backward as part of the League of Nations’ mandate system—a strikingly different story of international criminal law’s genesis than we encounter in DeGuzman’s more uplifting account. The Allies also coined the concept of "crimes against humanity" in 1915 as a discursive revolver to denounce the Central Powers and the destruction of the Armenians in particular. This concept would later become part of the underlying charter of the Nuremberg Trials, where "crimes against humanity" were defined as enslavement, extermination, and other inhumane actions against civilians.
However, Nuremberg’s central concept of criminality was not the crime against humanity, nor that of genocide, or even war crimes. (The Grave Breaches regime of the Geneva Conventions was coined only several years later.) Justice Jackson declared crimes against peace, or the crime of aggression, as the "crime of crimes." It was to become international law’s supreme crime hovering above war crimes and crimes against humanity and installing hierarchy among and between international criminal concepts—as well as writing out of history the destruction of European Jewry. Jackson also admitted that "how a government treats its own inhabitants [was of] no concern to other governments or of international society." The Allies sought to prevent another world war by developing hierarchical mechanisms of law and politics that would help maintain Great Power stability, as well as reviving the nation-state’s sovereignty damaged under Axis occupations. However, the Cold War and state unwillingness to give up their right of self-defense made it impossible to agree upon a proper definition for aggression—at least not until 2010 when the ICC’s codebook was amended.
In the meantime, shocking the conscience of humanity has become increasingly centered around the concept of genocide as the "new" crime of crimes, with problematic consequences for those victims suffering from injustices other than genocide. The historical impact of emerging Holocaust memory in the wake of the Eichmann trials, if not earlier, has been historic – but not without its own paradoxes, contradictions, and complications, notes Moses. As the intellectual godfather of the concept of genocide, Raphael Lemkin’s focus on the deliberate destruction of minorities has captured both popular and legal imaginations. Genocide has become a powerful concept; aggression, war crimes, and attacks on human dignity—the latter of which DeGuzman prioritizes over other vocabularies—no longer appeal as much to the lawyer’s mind as they did in the past. In legal practice, it means that judges of international courts award much higher sentences for genocide, with a median of thirty-four years, than for crimes against humanity, with a median of two decades—let alone grave breaches, with a median of just eighteen years (172).
This raises a far more important question: what has been lost because of this new implicit hierarchy in international criminal law? According to Moses, it blinds us to other types of mass victimization such as "collateral damage" of drone strikes buried under the facade of genocide. According to DeGuzman, it creates severe legitimacy problems for the project as a whole: she believes that leaving gravity ambiguous may have ensured the adoption of the ICC’s Rome Statute in the 1990s, but is now threatening its future amidst growing criticisms, also in relation to its alleged racial bias against African states—some of which are now threatening to leave the ICC. Whether we need a new concept for denouncing civilian death, or a broader and revitalized notion of existing legal categories as DeGuzman suggests, is a matter of debate. Similarly, ditching the concept of genocide does not automatically resolve the systemic problems of today’s international legal affairs. What is certain, though, is that we need to recognize that too often we invoke the language of "humanity’s shocked conscience" as a natural or ahistorical category.
We often forget, let alone make explicit, what the concept means, however. Nor do we have a clear and thorough understanding of how its historical trajectory affects our thinking about today and tomorrow. International prosecutors make a similar mistake if they continue to claim that the scope of their work should be limited to crimes on the scale and nature of the Holocaust (1). Indeed, why is that civilian death—whether caused by drone strikes or racist police brutality—needs to resemble mass violence if not genocide to be recognizable as an international crime, both authors ask rightly. What do we conceal or forget when we argue that harm to civilians needs to shock humanity’s conscience? Who do we exclude if we do not "feel" shocked? What can we except—and not expect—from international law in resolving these monumental issues? And how inter-national is international law really? We should ask ourselves at a time of geopolitical and moral fracture.
Posted on 30 September 2020
BOYD VAN DIJK is a McKenzie Fellow at the Melbourne Law School. He is currently preparing a book manuscript on the making of the 1949 Geneva Conventions (Oxford University Press).
