The coming of age of cosmopolitan law : crimes against humanity and their prosecution
In the era of globalization many writers (e.g. Hannah Arendt, David Held, Robert Fine) have argued that the ideology of nationalism is being challenged by the growth of cosmopolitan developments, ideas and institutions. This thesis takes off from the evolution of 'cosmopolitan criminal law' out of international law. It argues that implicit in the elaboration and use of the 'crimes against humanity' charge at Nuremberg and at the ad hoc International Criminal Tribunals for Yugoslavia and Rwanda (ICTY and ICTR), is the admission that genocide and ethnic cleansing are the business of the whole of humanity and that perpetrators may no longer hide behind the principle of national sovereignty. I argue that the establishment of the principle of individual criminal responsibility for such crimes is not simply a legal fiction. I further argue that the greatly expanded role for short-term instrumental rationality which prevails in modem society (e.g.Zygmunt Bauman) does not limit social actors to a choice of either complicity in or a stepping out of society. The evidence shows that perpetrators do make choices for which they may be held responsible and are not simply puppets of rational structures. The thesis looks at three responses made by the international community to ethnic cleansing in the former Yugoslavia: the peace at all costs policy, which allowed ethnic cleansing to go unhindered in Bosnia; the bombing policy which failed to stop but reversed some of the effects of ethnic cleansing in Kosovo; and the establishment of the ICTY which is judging some of the perpetrators. I use the trials of Dusko Tadic and of Tihomir Blaskic as case studies to investigate the working of the first international criminal tribunal. I also investigate the trial of Andrei Sawoniuk, held in London in 1999, for his actions during the Holocaust in Belarus, and the libel trial in which David Irving sued Deborah Lipstadt. Using these four cases, I examine the functioning of cosmopolitan criminal trials, the different contexts in which they are held, their use of evidence and law, the extent and limits of the justice they achieve, and their role in the production of authoritative cosmopolitan narratives.