1 Violating the human status
The evil of genocide and crimes against humanity
In October 1945, 24 Nazi leaders, bureaucrats and architects of the Holocaust were indicted by the International Military Tribunal for Nuremberg, charged with war crimes, crimes against peace and, for the first time in history, crimes against humanity (Schabas 2001: 6). The Nuremberg trials exposed to the world the still-emerging details of the Nazi regime's attempt to eradicate entire groups of human beings from the earth, and prompted a revolution in international law and politics. Subsequently, ad hoc international criminal tribunals were established to prosecute those accused of atrocities in the former Yugoslavia and Rwanda, and most recently a permanent International Criminal Court (ICC) was established in order to take legal action against individuals accused of the gravest war crimes, crimes against humanity, and genocide. Given these developments, it might seem that the international community is, finally, making good on its promise that ânever againâ should genocide be allowed to occur. Clearly, this promise has yet to be fulfilled, as numerous examples â from Bangladesh and East Timor, to Cambodia, Rwanda and now Darfur â attest. In all these cases, the failure to prevent or halt genocide can be described, as has been widely said about the Rwandan genocide, as the triumph of evil. Yet how are we to understand the relationship between the concept of evil and the legal category of crimes against humanity? Further, how are we to make sense of the promise ânever againâ? What is at stake, morally and politically, in making such a promise? Finally, how can reflecting upon evil and promise-making be brought to bear on the existence of the ICC?
A number of commentators have suggested that the establishment of the ICC is a cosmopolitan moment in our globalizing world (Ralph 2003; Franceschet 2005; Roach 2005). Its appearance seems to mark the successful realization of certain cosmopolitan ideals and practices. While some backers of the ICC might regard its creation as evidence of the progressive âenlightenmentâ of humankind, this chapter adopts a different approach, and argues instead that the ICC is best characterized in terms of cosmopolitan realism, that is, a critical cosmopolitanism shorn of historical and moral idealism. This approach is adopted for several reasons. Most importantly, I contend, the creation of a cosmopolitan âregimeâ leading to the establishment of the ICC has been motivated more by the terrifying experience of political evil than by the triumph of enlightened moral consciousness, that is, by the horror that humanity inspires rather than by Kantian awe at the âmoral law withinâ (Kant 1997: 133). Further, the cosmopolitan law underwriting the ICC can be properly understood only with constant reference to the phenomenon of political evil, in two ways: first, as a way to make the historical experience of evil intelligible; and second, as a way to subject the perpetrators of evil to political judgement and legal accountability. From this perspective, the ICC should be regarded as the latest effort to juridify evil.1
The basis for this chapter comes from Hannah Arendt's claim that while the âshrinking of geographic distancesâ throughout the twentieth century made humanity âa political actuality of the first orderâ, it also rendered âidealistic talk about mankind and the dignity of man an affair of the past simply because all these fine and dreamlike notions, with their time-honoured traditions, suddenly assumed a terrifying timelinessâ (OT: 303). For Arendt, the major weakness of the cosmopolitan tradition has been its tendency to succumb to idealistic illusions while neglecting the cruel realities of political life. Thus, while Arendt's political theory exhibits a strongly cosmopolitan sensibility - although Arendt does not call herself a cosmopolitan theorist â it is a sensibility conditioned by an uncompromising willingness to face up to the moral and political horrors of modern life, the âdark timesâ of political evil that shake our sense of reality and threaten our capacity for judgement, responsibility, and action. Following Arendt's lead, this chapter argues that a critical and realistic cosmopolitanism must start from, and respond to, the lived reality of the shared experience of extreme political evil.
My reading of Arendt's cosmopolitan realism implies that the process of translating horrifying atrocities into politically intelligible and legally sanctionable crimes provides a new juridical idiom for resisting evil actions. This commitment, however, cannot escape from the condition of normative ambivalence that necessarily accompanies moral and political confrontation with evil. Cosmopolitans can seek to eradicate evil through moral perfectionism, or accept the capacity for evil while resisting it whenever possible, but not both. This, I think, means that we can support the aims of the ICC and resist pernicious threats to the human status, but to do so responsibly requires accepting rather than dismissing normative ambivalence in the global age if we wish to remain in touch with reality and not succumb to the dangerous illusions of cosmopolitan idealism.
Following from this, I suggest that what most distinguishes cosmopolitan realism from other versions of cosmopolitanism is that it begins from, and continually refers back to, the shared experience of extreme evil. While it regards the formal juridification of evil as necessary in order to achieve justice, it refuses to lose sight of the fact that the most egregious of international criminal acts - genocide and crimes against humanity - nonetheless are acts of evil, the meaning of which is irreducible to the category of criminal transgression. The juridification of evil is necessary for mechanisms of justice, but by itself is insufficient to grasp the political and existential significance of the elusive experience of extreme evil. For this reason, cosmopolitan realism is predicated on recognition of the ineliminable human capacity for evil as a political reality, the risk of which the juridification of evil cannot dispel altogether.2 It also exposes an inescapable paradox at the heart of the juridification of extreme evil: that the occurrence of evil can be eliminated completely only by generating further acts of evil against humanity. Political responsibility, as a necessary supplement to the juridification of evil, requires understanding and acceptance of this paradox.
To illustrate this argument, this chapter draws primarily on the work of Arendt, supplemented at points by that of Ulrich Beck. The first section discusses the necessity of bringing evil âdown to earthâ in response to the experiential horizon of the twentieth century, and employs Arendt's conception of extreme evil in order to show that the âproblem of evilâ is best understood not as a problem in the traditional metaphysical sense, but as a political problem of the age of genocide. The second section addresses the issue of juridification as a process of translating extreme evil into politically intelligible and legally sanctionable crimes. Here, I explore how the doctrine of crimes against humanity provided a new juridical idiom for extreme evil, which is then used to illuminate Arendt's understanding of cosmopolitanism from a distinctively realist perspective. The third section connects the preceding discussion to the argument for cosmopolitan realism advanced by Beck as a way to view the ICC as a manifestation of reflexive modernization in contemporary global politics, and thus as a form of cosmopolitanization that political action realistically can take in resisting evil actions. The fourth section considers the implications of the paradox of extreme evil for cosmopolitan responsibility and solidarity, and relates this to the ICC's first case in Uganda and then back to the burden imposed by the promise ânever againâ.
Thinking about evil in the age of genocide
Adam Lebor recently suggested that in the post-Cold War era the United Nations has been, and remains, at least passively complicit âwith evilâ (2006: ix-xiv). From Srebrenica to Rwanda and Darfur, the United Nations repeatedly has chosen not to act to prevent or stop genocide, despite possessing knowledge that genocide is being committed and having the means to intervene. As Lebor's discussion makes clear, âcomplicity with evilâ can occur either through aiding and abetting perpetrators or through refusing to deter them when in a position to do so, and in the case of modern genocide these two sides of complicity have become deeply intertwined. While Lebor insists (2006: 5) that his account of the UN's complicity with evil should not be taken as a blanket condemnation of the institution - and even less so of the ideals it embodies â it points nevertheless to an ambivalent relationship between a defining moral discourse of our era and the extant organization of power, ethics and politics in the international system. In the post-Holocaust age, âevilâ has become synonymous with genocide and crimes against humanity, and this familiar public discourse has helped to justify the idea of an international legal and political order predicated on the suppression of such evils, irrespective of territorial borders. In practice, however, the categorical promise to ânever againâ allow such evil to go unchallenged has been betrayed with astonishing regularity. The basic dilemma of the post-Holocaust era remains unresolved: can the international community successfully stop genocide and crimes against humanity, or are its efforts doomed to inevitable failure? But there is a flaw in this question that arises from a misconception of the evil at stake, and thus of a paradox that confounds the effort to eliminate evil. This flaw is dangerous in that if one admits the inevitability of failure, then it may seem reasonable to not make the effort at all; yet if one accepts the possibility of success, then this may license the emergence of new forms of evil in order to combat some pre-existing evil. In either case, evil persists. There is a way to negotiate this paradox but only, I contend, if we both accept the persistence of evil and act to reduce the risk of its occurring needlessly. This means also accepting the normative ambivalence within which international efforts to prevent, suppress and punish genocide and crimes against humanity will remain, inasmuch as this ambivalence is a reflection of the place of evil in the human condition.
We can better understand the normative ambivalence that arises from efforts to condemn the most egregious atrocities through a consideration of how evil can be conceived in the age of genocide. Much of the philosophical canon is predicated in the idea that evil is a âproblemâ to be neatly solved. Philosophers and theologians have long struggled with the problem of theodicy, of how to reconcile the existence of evil with belief in a benevolent and perfect God (Bernstein 2005: 2â3). I do not wish to rehearse the various and usually elaborate attempts to explain (or justify) evil when viewed as a metaphysical conundrum (see Neiman 2002; Morton 2004; Cole 2006). I would only like to suggest that, given the historical and metaphysical rupture symbolized by Auschwitz, we cannot rest content with debating the problem of evil in purely religious or philosophical terms. Rather, evil has become a concrete, lived experience that defines, in large part, the self-understanding of our age - the age of genocide (Power 2002). Because of this experience, Arendt was to argue that the problem of extreme evil as apolitical phenomenon forms the background against which all attempts to understand the contemporary world and our responsibilities within it necessarily must be made (EU: 134). The political question that arises concerns the meaning of the modern human condition inescapably framed within the horizon of once âunimaginableâ acts and actors that have now become all too human. The search for the unassailable truth of how to reconcile good and evil in a transcendent order and thereby rid the earth of evil (if only through redemption) is now replaced by a more worldly yet no less challenging question: What is the meaning of the great political evil that confronts us as humans today and what ethical, political, and legal responses can be offered?
Arendt is perhaps the foremost thinker of the postmetaphysical meaning of evil in relation to the age of genocide.3 While Arendt was deeply knowledgeable of theodicy and the traditional problem of evil (see LSE; Kohn 1996: 151â52), her concern with evil was motivated primarily by the political catastrophes of imperialism, totalitarianism and the Holocaust. In struggling to make sense of modernity's darkest moments, Arendt sought to shed evil of its supernatural connotations by treating it as a political phenomenon mediated not through divine or demonic forces, but through the actions of ordinary individuals and the power relations of social institutions within which these actions are inscribed. In The Origins of Totalitarianism, Arendt argues that neither Christian theologians nor Immanuel Kant (who coined the phrase âradical evilâ) were able to conceive the reality of radical evil in the body politic; the former because it âconceded even to the Devil himself a celestial originâ and the latter because, even though he âat least must have suspected the existence of this evilâ he nevertheless âimmediately rationalized it in the concept of the âperverted willâ that could be explained by comprehensible motivesâ (OT: 591â92). Arendt believes that the phenomenon of radical evil only suspected by Kant became the distinctive reality of modern society, as witnessed by the deliberate fabrication of an âearthly hellâ in the âconcentration camps and torture cellarsâ perfected by the Nazis (EU: 383). In the Nazisâ political regime, the totalitarian belief that âeverything is possibleâ was given material expression, with the result that when âthe impossible was made possible it became the ⌠absolute evil which could no longer be understood and explained byâ the malice, insanity or character defects of a few monstrous individuals (OT: 591).
Arendt's controversial and frequently misunderstood notion of the âbanality of evilâ, presented briefly in Eichmann in Jerusalem, exemplifies her intervention into the narrative of the Holocaust and Nazi atrocities. With this concept, Arendt departed from Kant's explanation of âradical evilâ according to which the doer of evil deeds was wicked, monstrous or demonic, towards a more nuanced account of âextreme evilâ, which emphasizes that terrible atrocities are committed even when âevil motivationsâ are absent, precisely because such atrocities are ânormalizedâ within powerful political regimes and social discourses (JP: 417). Arendt argues that the traditional approach that locates evil either in the extrahuman or the subhuman merely reduces evil to a sterile scholastic problem, which makes it possible to shut our eyes to the material reality and political significance of the systematic extermination of millions of people (OT: 592). Arendt thus sought to change our perspective on evil and give expression to its unique character as something made concrete under historical circumstances.
What constitutes the âhorizon of experienceâ for the world after Auschwitz is knowledge that âkilling is far from the worst that man can inflict on manâ (MDT: 127). The most extreme evil on earth is not merely violent death at the hands of others, but the âhistorically and politically intelligible preparation of living corpsesâ, that is, the planned transformation of human beings into non-humans which precedes their extermination (OT: 576). To be clear, Arendt is not suggesting that the mass killing of human beings carried out by the Nazi genocide is not evil. What she is suggesting, however, is that the meaning of this atrocity is located in the experiential space opened up between the actual killing itself and the preparatory dehumanization coldly and systematically carried out beforehand. How can we make sense of the moral and political abyss that exists between murder on the one hand and the âfabrication of corpsesâ on the other? More than death itself, complete dehumanization â the loss of personhood and exclusion from a human world â is the most terrifying possibility we can now too easily imagine.
Arendt's postmetaphysical definition of evildoing âhas to do with the following phenomenon: making human beings as human beings superfluousâ (AJ: 166). Actions are evil insofar as they produce the systematic destruction of people's human status by means of rendering their particularity, that is, who they are as unique human beings, superfluous. The logic of superfluity - what Arendt (OT: 384, n. 54) referred to as the âmodern expulsion from humanityâ - is not merely to kill people, but completely to dehumanize them, to strip them of all dignity and to treat them as nothing more than manipulable and expendable matter. Superfluous people are those cast out of a common world through the destruction of their political, legal, economic and moral status. Arendt's view of extremely evil acts involving superfluity, and frequently consistent with ordinary or âbanalâ society-wide attitudes and moral codes, is intended to shift our thinking to the question of what it means to be human. The answer to this question rests upon the fragile interrelationship of the human condition of plurality and having a place in the public world shared with others. Political evil typically entails a double process of superfluity - destroying the fact of plurality in the pursuit of an ideal of homogeneous âManâ (as opposed to the lived reality of heterogeneous âmenâ), and denying individuals moral, juridical and political standing as unique persons within a community founded on reciprocal recognition of equal status. The result of such a process of dehumanization is an assault on the very idea of âhumanityâ itself. Seen in this light, Arendt rightly emphasizes that we are human not solely because of our physical birth, but also because of our belonging with others politically in a world we create together between us; we become human on the basis of the natality of our second, âpoliticalâ birth (HC: 176). Properly speaking, then, genocide is an evil act because it seeks to efface humanity as the active coming together of a plurality of persons within a commonly shared world.
In sum, the crucial feature of extreme evil in Arendt's account is that it is a form of political action that takes aim at the human status as such, in its relentless drive to deprive individuals qua politically recognized human beings from having a place in the world. Moreover, Arendt thought that one of the most terrifying characteristics of political evil in modernity is the fact that it often can be committed on a âgigantic scaleâ on the basis of the most petty and all-too-human motives (RJ: 159). Arendt's notion of the âbanality of evilâ has been frequently criticized, and just as frequently misunderstood. With this concept, Arendt simply brought to our attention that it is best to conceive of evil actions not as external manifestations of innately corrupt properties of human nature, but in terms of the concrete social, ethical and political actions of specific individuals, even if the motives for these actions are often mundane (JP: 245). For instance, although Eichmann seemingly was motivated by the most banal careerism, he nevertheless intended to coordinate the transportation of millions of innocent people to their deaths and acted so as to make this happen. His actions were evil despite the absence of âdemonicâ motives; to put it another way, he did evil without being evil. Arendt's argument also drives home the point that attributing the magnitude of extreme evil to a few deviant âothersâ serves to obfuscate the fact that so many people just like âusâ are required for such evil to happen (EJ: 276). In order to accomplish the extreme evil of genocide, it is necessary for a broad spectrum of society to accept and facilitate the crime as a ânormalâ or acceptable political goal. Arendt insists that because evil occurs on a collective, political plane, it requires a political response of articulating institutional arrangements and a juridical discourse for inscribing political evil within a global legal order, such as with a permanent International Criminal Court (EJ: 270â72). But in doing so, we must remain aware of the normative ambivalence that, Arendt cautions, conditions such endeavours.
Facing up to extreme evil: towards cosmopolitan realism
Susan Neiman stresses that the problem of evil âis fundamentally a problem about the intelligibility of the world as a wholeâ (Neiman 2002: 7â8). The appearance of evil actions threatens our trust in the world and disrupts our sense of reality through which we interpret, understand and interact with the world in which we live. In Arendtian terms, evil destroys the social or public roots of âcommon senseâ, the shared measure of human experience through which we have a place in the world with others (LK: 27; RJ: 138â43). Evil thus provokes an ethical crisis in that it may jeopardize our ability to judge and to act; ethical paralysis, if not outright nihilism, can be a destructive effect of evil actions. T...