ABSTRACT

Two recent events indicate how state sovereignty underscores the political contradictions of the global present and suggest a revision of the left critical apparatus. Hidden in the midst of threats to the neo-liberal credo – calls for the return of state regulation in light of the 2008-9 collapse of the global economy – was another significant decision of global import, the International Criminal Court’s (ICC) issue of a ‘warrant of arrest’ for the President of Sudan, Omar Hassan Ahmad al Bashir, in March 2009. Most of us in the left, I am guessing, celebrate the (even if weak) calls for the return of the state to the control room of economic affairs; many applaud the ICC’s decision as a belated response to human suffering in Africa; while some, and of this I am sure, find the warrant of arrest for Bashir another expression of Western arrogance. For the critics of global juridical architecture and procedures – namely the human rights corpus, humanitarian law and humanitarian intervention – this later event constitutes a colonial act, a reinscription of Hegel’s writing of Africa as the ‘dark continent’, where, according to this latest version, post-Enlightenment accomplishments, such as the democratic state and humanity, go to waste. What this warrant signals, I think, is the shift in international law intro-

duced by the International Criminal Tribunal for Rwanda’s (ICTR) statute and decisions. The ICTR’s main innovation was the elimination of the ‘war nexus’, that is, the requirement that the acts enumerated under genocide and crimes against humanity occurred in connection with an international conflict. That nexus appears in the 1945 London Declaration, which framed the Nuremberg Tribunal, and in the International Criminal Tribunal for Yugoslavia statute (Chesterman 2000 and Cerone 2008). After the establishment of the ICTR, and under the ICC’s statute, on the other hand, the international forces of law enforcement and administration of justice have the authority – and, many claim, the obligation – to prosecute individual (state) officials even if their acts are not directly related to an armed international conflict. This chapter reads the first decision of the ICTR, The Prosecutor versus Jean-

Paul Akayesu (ICTR 1998), in light of these shifts. Then UN Secretary-General Kofi Annan celebrated this ruling as a ‘landmark decision in the history of

international criminal law’ that ‘brings to life, for the first time, the ideals of the Convention on the Prevention and Punishment of the Crime of Genocide’ (Annan 1998). Because Kofi Annan does not provide any bases for this statement, it is all the more crucial that this ‘landmark decision’ should become an object of critical scrutiny. My goal here is to engage in such a task. More specifically, I frame a political ‘legacy’ of this decision, which is to consolidate the place of humanity in the books of international law through the particular deployment of cultural difference that sustains the chamber’s decision to charge Akayesu with genocide and crimes against humanity. My reading of Akayesu’s judgment considers the following questions: what happens after cultural difference is deployed to explain (as a scientific [truth] construct) why (the subjective grounds) many thousand persons were killed in Rwanda and to justify (as an ethical principle) the prosecution and punishment of other Rwandans for crimes against humanity (the universal ethical figure)? What sort of juridical subjects does this deployment produce? If they are among the first global (legal) subjects, what can an analysis of this particular juridical statement, in which they emerge, say about the political function of international law in the global present? More importantly, if the subject of crime against humanity is the latest refashioning of the global subaltern subject, what critical tool can help us to comprehend its conditions of emergence and effects of deployment? My consideration of these questions is as follows. First, I begin with a

critique of the prevailing critique of the human/humanitarian, which is encapsulated in what I call ‘the racial “othering” thesis’. While this critical construct has been used in early analysis of colonialism and racism, I will argue that its deployment in the global present is limited because it does not examine the conditions of production of European/white superiority. Second, my analysis of the Akayesu decision tackles the necessary task. That is, it describes the effects of deployment of the tools of social scientific knowledge to reveal how they produce global subjects, which cannot be comprehended by the notion of humanity. Finally, the concluding section is more an invitation to consider a racial/global emancipatory project which does not fall in the trappings that haunt historical-materialist and anti-racist theoretical perspectives alike. Framed as a map of today’s global political landscape, this chapter is not so much a critique or dismissal of the racial ‘othering’ thesis. What it does is suggest that post-Enlightenment ontological descriptors – such as self-determination (freedom), which the notion of ideology cannot but assume – cannot guide our critiques of the political work performed by the figure governing the global ethical-juridical vocabulary, namely humanity.