chapter  6
19 Pages

COSMOPOLITANISM AND PUNISHMENT: Prosecuting crimes against humanity

The prosecution of crimes against humanity is often given pride of place within the new cosmopolitanism as the marker not only of the transition from classical international law to cosmopolitan law but of the emergence more broadly of a cosmopolitan consciousness that stretches across national boundaries. What makes this aspect of international criminal justice so significant for cosmopolitanism is that the idea of crimes against humanity refers to ‘crimes that can be committed completely within one state’s borders by members of that state against other members of that same state’ and therefore ‘challenges the traditional understanding of a state’s exclusive prerogative over crimes committed within its borders’ (May 2006: 349). And yet the normative standing of this legal institution has been challenged from all sides: by those who denigrate the prosecution of crimes against humanity as merely ‘victors’ justice’ in a legal cloth; by those who see the criminalisation of individuals as an irrelevance in relation to larger issues of responsibility and justice; and those who are suspicious of codified abstractions dissolving the particular experience of horror shared by the victims. In the face of these criticisms the characteristic response of the new cosmopolitanism is to look to the completion of the transition to cosmopolitan law: to develop an international criminal court, to specify the content of crimes against humanity, consolidate the status of this crime within international criminal law, establish an international police force to apprehend suspects, and construct a system of impartial adjudication and punishment. I suggest, however, that this predominantly legal response to the normative fragility of the law of crimes against humanity should also address the inter-connections of law and

politics. Instead of exploring the relation between cosmopolitan law and politics, the juridical approach seeks to isolate the law from politics and elevate it above politics. I shall argue that cosmopolitan social theory entails a way of understanding crimes against humanity which from the start traces the ties that bind law to politics and politics to law.