Criminal trials, economic dimensions of state crime, and the politics of time in international criminal law : a German-Argentine constellation

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