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A Meditation on the Importance of the Perpetrator-Centered Perspective to Theorizing about Justice

[Image from Nuremberg War Crimes Tribunal] [Image from Nuremberg War Crimes Tribunal]

My research and writing tends to focus on gross injustices, specifically on gross crimes—war crimes, torture, crimes against humanity and genocide. The perpetration of most kinds of crimes—and certainly these—is, by definition, “legal injustice.” While we may quibble about and legitimately criticize various standards and models of criminal justice, when it comes to gross crimes, as I argue here, the prosecution of perpetrators is an essential if elusive means to produce “justice.” To tip my hand to where my argument is going, I advocate a “tough on crime” approach to gross crimes. By doing so, I attempt to link a progressive perspective on justice to an often reactionary discourse on criminals and criminality. I would argue, for example, that when it comes to the crime of torture, the jails are not full enough and prosecutors and courts are not tough enough; perpetrators walking free and at no immediate risk of “law’s violence” mock the concept of justice.

The practices that constitute these gross crimes are not modern (e.g., mass killings and torture are as old as warfare and “state” law, respectively), but their criminality and criminalization are part of the modern history of international law and order. The specific kinds of practices that we now characterize as “war crimes” (e.g., purposeful killing of civilians in the context of war, excessive use of force), “torture” (i.e., purposefully harming individuals who are in custody but have not been accused of any crime), “crimes against humanity” (i.e., large scale and/or systematic attacks on civilians and civilian infrastructure whether occurring in war or peace), and “genocide” (i.e., deliberate and systematic destruction, in whole or in part, of an ethnic, racial, religious or national group) have come to be constituted as gross crimes under international law—as have the very categories of “civilians,” “noncombatants,” “excessive use of force” and so on. 

The processes of defining and outlawing these practices are integral to the development of modern international law itself. International humanitarian law (IHL) is the modern incarnation (and reformation) of the (pre-modern) laws of war; the crises/conflicts that triggered the first efforts to institute “modern” rules to make war more “humanitarian” (i.e., minimizing unnecessary suffering) were the American Civil War and the Battle of Solferino. Today, the core of contemporary IHL is the four 1949 Geneva Conventions, promulgated in the aftermath of World War II. International human rights law also was borne of the horrors of World War II; in that rights come from laws, there were neither international human rights nor human rights laws prior to 1948. (The 1948 Genocide Convention was the first human right law.)

The injustices—that is, the violations of law—that constitute the gross crimes have been aptly characterized by Hagan et al (2006) as “’harder’ human rights”: the rights that all human beings have not to be tortured, genocidally exterminated, or willfully killed or injured by state security forces or non-state militants if they are unarmed. These harder rights, which explicitly respond to the universality of the “frail human body,” are negative rights because they are constituted by legal prohibitions: Humans have these rights because, today, no one has the legal right to engage in or abet torture or extra-judicial executions, or to commit, order or provide material support for genocide, war crimes or crimes against humanity. Four elements distinguish the prohibited practices that constitute these harder rights from other human rights: They are all forms of political violence that are (a) intentionally (b) perpetrated by people acting in a public capacity for public, not private, purposes (c) against captive or otherwise defenseless people, and (d) violations are crimes.

One of the common misperceptions is that if the laws are ignored, violated or unenforced, then people don’t “have” rights. We need to distinguish among “getting” rights (that is, demands and mobilizations for new rights laws), “enjoying” rights (enjoying the protections, freedoms and liberties that rights laws promise), and “having” rights (having a legal right to rights whether or not the laws are effectively or adequately enforced). To say that people only have the rights that they can enjoy is to presume that the law does not exist or serves no purpose if it is not respected and enforced. But this would be analogous to saying that criminal law doesn’t exist or serve a purpose if crimes are committed and some go unpunished, an obvious absurdity. The same holds true for rights laws.

Rights are valuable not just because they have the capacity or promise to make the world a better place and help people, but because they have the capacity to hurt people, that is, to hurt people who hurt people (see Dorfman 2002). In regard to rights generally, and the “harder human rights” especially, the violence of law is a good that is underappreciated and under-theorized by progressive scholars, although it commands serious attention among right-wing scholars and pundits who are exorcised about “lawfare”—the use of courts and legal processes to punish or restrain state agents and other powerful actors who engage in rights violations (see Carter 2005, Dunlap 2007, Horton 2007, Pearlstein 2007). As I have argued elsewhere (see Hajjar 2010), penalizing, punishing, disempowering, and delegitimizing rights violators; transforming the conditions in which impunity thrives; harvesting vengeful “law and order” sentiments to expose and oppose—and hurt—law violators should be centerpieces of scholarship on rights and justice. I propose, therefore, the need to cultivate a perpetrator-centered legal violence-is-good approach to rights and justice. While I would not subscribe to the utopian notion that law is a panacea, I do believe that the law can do some very good harm.

I am a strong advocate of universal jurisdiction as one gap-closing tool in the justice-seeking toolbox. Universal jurisdiction offers a means of pursuing criminal accountability for (only) gross crimes under international law by enabling the prosecution of perpetrators in a foreign national legal system with no connection to the crime. Its legitimizing principle is the need to ensure that these crimes do not go unpunished. Ideally, prosecutions occur in the legal system of the country where the crime was committed (territorial jurisdiction), or—if different from the crime site—the country of the victim (passive personality jurisdiction) or the perpetrator (active personality jurisdiction). If there is a failure or inability to prosecute perpetrators in a more appropriate venue, universal jurisdiction provides a complementary option to close the impunity gap between crime and punishment.

The quest for universal jurisdiction is perpetrator-centered, retributive, and “backward looking” because the commitment of a crime is the pre-condition for action. Unlike the victim-centered helping people-model that dominates the human rights movement, universal jurisdiction employs the hurting people-model of criminal justice—that is, hurting (by prosecuting and punishing) the people who hurt people (i.e., the perpetrators of gross violations). As for victims, while retributive justice against those who caused them harm may be vindicating, their role is passive; as in criminal law generally, victims are objects rather than subjects of prosecution because their suffering and witnessing experiences are appropriated for retributive purposes that they might support but do not control. To the extent that universal jurisdiction offers any forward-looking promise of a better world, it does so by trying to deter illegal practices that “create” victims in the future by making an example of today’s perpetrators.

The legal mobilizations that constitute the quest for universal jurisdiction are a means to an end, the end being—like the larger human rights project—the enjoyment of rights. But universal jurisdiction’s retributive approach to redress violations bears little similarity to the movement aspects of human rights activism (i.e., victim-centeredness and striving popularization), just as the harder rights differ in certain qualitative ways from other human rights. To be sure, there are movement-based forms of activism for promoting and protecting the harder human rights. But the criminal pursuit of the perpetrators of gross crimes is the monopoly of intellectually elite lawyers who have an expert command of highly complex legal issues and who are capable of transforming underdeveloped principles of international law enforcement into retributive practice. The work involves interpreting and arguing the applicability of human rights and humanitarian laws to available facts about crimes in order to pursue indictments, and assessing and advocating the suitability of specific national legal systems to undertake the arrest and prosecution of foreign perpetrators; it is a rarified subset of international law practice which itself is rarified in the broader domains of law. The target constituencies in the quest for universal jurisdiction are other elites, and the nature of the work (e.g., producing criminal complaints, filing briefs and motions, arguing in court) involves raising the rights consciousness of judges and political decision makers and impressing upon them the responsibility to use their institutional power to do retributive justice. Hence, not only is my approach “tough on crime,” it is also an embrace of legal and intellectual elitism—in the service of a “greater good.”

 

[This piece is intentionally provocative. I hope it will provoke some discussion and debate about the value of the "perpetrator centered perspective" and the valorization of prosecution as essential to the pursuit of justice]

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