thesis
Criminal trials, economic dimensions of state crime, and the politics of time in international criminal law : a German-Argentine constellation
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Abstract
In the past thirty years, International Criminal Law (ICL) has established itself
as an influential framework through which claims for justice in relation to the
past can be mediated. This thesis offers a critique of the particular way in
which ICL links history, law and justice. To this end, it contrasts a transitional
justice perspective on trials in response to state crime, with one that looks at
such trials as sites of competing politics of time. While the former focuses on
the stabilisation of political authority, the later privileges its destabilisation.
This perspective is then brought to bear on two sets of trials. These are, on
the one hand, the trials of German industrialists conducted by the Allies in
the wake of World War II (1939-1945) and, on the other hand,the ongoing
trials in Argentina which seek to address the economic dimensions of the last
Argentinian dictatorship (1976-1983).
Through the reading of these trials, ICL is shown to be a liberal concept of
historical justice, not (merely) because it focuses on individual responsibility
or because it seeks to foster the liberal rule of law, but, more importantly,
because it understands the economic dimensions of state crime according to
the ontological separation of the state and the economic which is inherited
from political liberalism. As a consequence, ICL tends to authorise a liberal
democratic order, while sidelining other political imaginaries and related claims
to justice, especially those that would involve a reshaping of the political
economy on which liberalism rests.
This argument is developed in two parts. The first part, consisting of three
chapters, contrasts what has become the predominant perspective from which
to study trials in response to state crime, namely transitional justice, with a
theoretical framework inspired by the work of Walter Benjamin – in particular,
his philosophy of history and his critique of violence. The central difference
between these approaches, this thesis will argue, lies with the way in which
each conceives of the promise of justice that comes with the memory of past
violence. Transitional justice literature links the duty to remember past
violence to the promise of fostering a particular juridico-political order, namely
the liberal rule of law. Walter Benjamin, by contrast, is interested in the past’s
ability to expose the foundational violence of the present juridico-political
order. Against this backdrop, the promise of trials in response to state crime
can be located only at the place, where they unearth ‘rags of history’ that, if read, expose not only the the violence of the past, but also that of the present,
thereby opening it anew for contestation.
Chapters Four, Five and Six put this theoretical framework to work in close
readings of several criminal trials which deal with the economic dimensions
of state crime conducted in post-World War II Germany and contemporary
Argentina. These readings bring into relief the way in which the ontological
underpinnings of political liberalism – such as the separation of the economic
from the political, and the categorisation of violence according to sanctioned
and non-sanctioned manifestations – structures the way that ICL makes sense
of the economic dimensions of state crime