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On the one hand, a reference to humanity as a community affected by these crimes can be found in the opening statement of Justice Robert H. Jackson to the International Military Tribunal of Nuremberg, in which he stated: "The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated.

That four great nations [United Kingdom, United States, Soviet Union and France], flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason".

Erdemovic 26 stated that crimes against humanity ".. It is therefore the concept of humanity as victim which essentially characterizes crimes against humanity.

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There is also an initiative from the Washington University School of Law 28 that contains a proposed 'International Convention on the Prevention and Punishment of Crimes against Humanity. Juan E. Cherif Bassiouni and Richard Goldstone , and in the preamble of the proposed convention they included a reference to the 'common bonds' and 'common values' that we share, to 'humanity' and the 'shock to the conscience of humanity' that these crimes imply.

This section has sought to show how crimes against humanity are based on a cosmopolitan worldview and in the existence of humanity as a 'political community of justice. However, despite the support found in the literature and the optimistic account on the influence of crimes against humanity in the rupture of sovereignty and in the incorporation of a 'political community of justice' based on our common humanity, the following section will examine the arguments against the 'paradigm shift' position that is so profusely used in the human rights and criminal law discourse; as well as examine the functioning of some international and domestic courts in the prosecution of crimes against humanity, in order to show how the 'community' that these tribunals are speaking to and acting in the name of, is still very much linked to the nation-state.

Even though the legitimacy and strength of the discourse that informs crimes against humanity is based on its appeal to the existence of a 'political community of justice' grounded on our common humanity, and on the role of criminal tribunals in adjudicating justice in the name of humanity, this does not necessarily imply that this community has effectively come into being. In fact, there is a possibility that crimes against humanity, as a means of prosecuting gross human rights violations, has not been able to move past the well-known and deeply rooted community of justice that is framed around the membership to a nation-state.

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This chapter will suggest that, contrary to what the discourse surrounding crimes against humanity has endeavoured to achieve, there has been no 'shift of paradigm. Firstly, the resilience of the 'political community of justice' grounded on the nation-state could be attributed to a structural problem which derives from seeking to prosecute gross human rights violations through legal instruments that are the product of an international community made up of states.

On this issue, Kingsley Chiedu Moghalu 29 refers particularly to the ICC as the ultimate institution forged by the 'international community' to procure global justice for all.


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He argues that even though the creation of this institution was informed by cosmopolitan or universalist worldviews, the fact that it is created in international law and in the midst of an 'international community' made up of states and where sovereignty is still the organizing principle, makes the ICC a failed attempt for global justice. In this sense, establishing a system of global justice for gross human rights violations is not as simple as creating institutions, legal frameworks and constructing a discourse around the existence of a 'political community ofjustice' grounded in our common humanity.

There are structural issues that need to be addressed and reformed in order for global justice, 32 in the way it was theoretically conceived, i. To provide global justice would mean to deconstruct our understanding of the 'international community' as we know it, which, as noted by Kingsley Chiedu Moghalu 34 and David Luban 35 is not done by appealing to the inclusion of cosmopolitan expressions in the legal framework and in the discourse surrounding the implementation of International Criminal Law —ICL.

For Luban "[o]bviously, there is no political community called 'humanity' that authorizes the tribunals; nor are they products of anything like a world governments.

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Their criticism suggests that human rights without the nation-state are void claims that cannot be enforced, because they are the product of states and therefore the discourse will not cease to reproduce power, statehood and nationalism as its grounding principles. The idea of global justice for gross human rights violations that captivated scholars and that inspired the establishment of the ad-hoc tribunals in the s, was initially presented as a 'higher justice', one detached from the inner politics of states.

However, this idea was flawed in that it omitted the fact that justice is ".. After examining the arguments to sustain that the prosecution of gross human rights violations is in fact closely linked to a 'political community ofjustice' grounded in the nation-state, in the following lines I will briefly present some evidence to support my argument. The fact that the discourse of global criminal justice for gross human rights violations in the name of humanity has not changed the paradigm of justice, which has been based on the centrality of the concepts of sovereignty, statehood and nationalism, can also be perceived in the implementation and functioning of the institutions that have been part of a complex system to prosecute crimes against humanity.

Although these are still a rare phenomenon, there have been several prosecutions of former members of the Nazi party carried out by domestic courts under universal jurisdiction e. France, Israel, Belgium and Canada. For example, in the Adolf Eichmann trial in Jerusalem, neither during the proceedings nor in the judgement ". Israel , and not in framing the discussion around the existence of a broader 'political community'.

This was a trial that meant to reaffirm the values of the French as a 'political community' of justice; it was supposed to reaffirm the values of those belonging to this community clearly framed within the boundaries of the nation-state. Up until the mids, state practice revealed ".

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In the Pinochet trial, an emblematic case of universal jurisdiction, even the NGOs that promoted the case in the UK, in a letter sent to the Metropolitan Police Commissioner argued that "[i]n any case. On the other hand, in the prosecutions conducted by Spain regarding former officials of the military regimes, as Sophie Baby argues, the Spanish citizens who had been victims of atrocities played a primary role in the opening of the investigations and the proceedings.

A docket opened against perpetrators of crimes committed in Argentina, included around Spanish nationals who were victims of the atrocities; and a claim filed in Spain for atrocities committed in Chile, was filed by a Spanish citizen in the name of other Spanish nationals who had been victimized, without any reference to the thousands of Chilean victims. Taking these examples into account, it seems that resorting to international criminal law as a means of pursuing the cosmopolitan vision of human rights has not been able to surpass the limitations which have always grieved the human rights discourse, mainly the territorial limitation of their reach.

In this sense, it is difficult to believe that "[t]he creation and development of the offense of crimes against humanity initiated at Nuremberg has been an important piece of the humanitarian historical puzzle, marking the end of the all-powerful state, critically re-framing the relationship between the state and its citizens, and furthering the recognition of individuals' nascent role in international law.

My purpose with this account was to examine if the incorporation of crimes against humanity in a legal framework, and in the discourse of human rights and humanity, has had an impact on the coming into being of a 'political community ofjustice' based on our membership to humanity.


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  4. In other words, if through the creation of the category 'crimes against humanity,' human rights practitioners were able to move past 'international law' into Hntermestic law, and if they had been able to broaden the bonds of solidarity or overcome the 'natural indifference to others.

    In order to do so, the paper firstly reviewed whether and how the discourse of 'global justice in the name of humanity' had grounded the emergence of the category of crimes against humanity. The paper showed how the emergence of the category 'crimes against humanity' was informed by the human rights discourse, and the way in which they are both based on a cosmopolitan worldview and in an appeal to a 'political community of justice' grounded in our common humanity.

    In this sense, it showed how the incorporation of this category in international law was presented as a breakthrough and a rupture of the paradigm of sovereignty.

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    Having confirmed the latter, the paper moved to review if this new 'political community ofjustice' has effectively come into being, or if the communities grounded on our belonging to a nation-state are still the prevalent paradigm. In this case, reasons were presented for believing that this 'global community' has not emerged, and that this is reflected in the implementation and functioning of the mechanisms and institutions created to adjudicate justice in the name of humanity. There was particular emphasis given to some cases of universal jurisdiction. From the analysis of the literature and some empirical evidence, it is possible to see how the emergence of a mechanism of 'global justice' is restricted by its inception in a system of international law which is steered by states and grounded on their sovereignty, and therefore at the service of power politics.

    Also, how justice is contextual and in this sense, the institutions in charge of administering it need to have a connection to the political, historical, social and economic conditions of the affected communities, which are delimited not by their membership to humanity, but to different and more selective communities of justice. Finally, looking at some cases of prosecutions of crimes against humanity showed how the appeal to universal jurisdiction did not have as a starting point the need to act in the name of humanity, but rather the need to act in order to protect the nationals of the state or enforce nationalism.

    I can conclude by suggesting that 'humanity' as a 'political community of justice' has not come into being, despite the incessant appeals to it by the human rights discourse. This shows how our 'natural indifference to others' is not overcome by the simple use of language, by the subscription of covenants or by the creation of institutions and mechanisms for the adjudication ofjustice. Appealing to humanity does not necessarily mean recognizing an existing community or creating one.


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    4. Bearing this in mind, I suggest, in response to the research problem initially put forth, that international criminal law as a means to address gross human rights violations, has not contributed to the endeavour of pushing human rights law further away from the nation-state by grounding them in a new 'political community of justice' that is not based on borders defined by state sovereignty. In fact, this international criminal law, which has presented itself as an expression of cosmopolitan justice for gross human rights violations, and as a means to move human rights closer to becoming 'intermestic law" is no different from the rest of the international law system in which it is embedded, where the nation state is the pivotal axis of the system.

      This paper seeks to contribute to the analysis of one of the fundamentals of the human rights discourse, i. However, it has methodological limitations because of the time and resource constraints to review all the prosecutions of crimes against humanity. On the other hand, the perception of justice as a 'local phenomenon' was not verified by direct contact with victims, or interviews, but by reviewing the literature and the critiques of distant justice presented by NGOs and local communities before the ICC.

      Bearing in mind the limitations exposed above, there is still further research that needs to be done in order to prove the main assertion, i. Tadic, parr. Antonio Cassese, Guido G. Whiting, eds. By qualifying certain crimes as crimes against humanity, it has been argued that humanity acquired a clearer sense of community since it was represented as a 'cogent interested group or party.

      Considering that the added value of the human rights discourse lies in its potential to reshape and modify borders and therefore turn inter national law into 'intermestic law," 6 and to create communities beyond nation states, the failure to find a way to move past this 'territoriality limitation' demonstrates a flaw in the incorporation of human rights into the inter national legal and political order, which greatly affects their relevance.

      As stated above, this paper will argue that although international criminal law has been imagined as the scenario or theatre to reinforce the existence of a 'political community ofjustice' based on our common humanity, it has not been able to displace the concept of state sovereignty. The overall question that will be addressed in this paper is if the use of international criminal law has contributed to move human rights law from 'international law' or 'transnational law' to 'intermestic law' and therefore had any impact on the existence of a 'political community of justice' found beyond the nation-state.

      In order to answer this question, section 1 will explore the discourse surrounding crimes against humanity and the way in which it refers to humanity as an existing 'political community of justice' that constitutes a breakthrough and a rupture of the paradigm of sovereignty. Section 2 will show the inconsistencies in this 'rupture of the paradigm. Last section will provide some concluding remarks. First, a preliminary clarification: The object of this research is not to negate or ignore the changes in the conception of sovereignty that have come with the implementation of human rights law, nor to disqualify the value of holding individuals to account for gross human rights violations.

      It is merely to question whether international criminal law can succeed as a means of championing the agenda of human rights, by creating law around the existence of a global 'political community of justice. It is only a qualitative study that seeks to explore a topic that has not been studied in depth and produce some insights about it for further exploration. When the 'international community' decided to qualify certain acts as crimes against humanity, it was reinforcing the idea of humanity as a 'global community ofjustice. In fact, the idea behind the legal category of crimes against humanity 10 was to prosecute gross human rights violations that 'shocked the conscience of humanity.

      Not only did the supporters of international criminal law resort to the idea of administering justice in the name of humanity, but they also embraced the potential for community —building that surrounds criminal law, i. However, in the quest to expand the bonds of solidarity and concern amongst people, and of expanding the membership, the 'international community' was also challenging the relative value of sovereignty.

      The incorporation of crimes against humanity into a legal framework intended to entrench the idea that those entitled to consideration in matters of justice were not only fellow citizens, but also all human beings, 15 therefore challenging the boundaries of sovereign states.

      Discourse Power and Justice (International Library of Sociology)

      It was the recognition that there was a different order of justice that had been violated, which outgrew the communities bounded by citizenship. Using Hannah Arendt's 16 words, the existence of these crimes meant that " Although as will be examined in the next chapter, there are reasons to be sceptical about whether the inclusion of crimes against humanity in the legal framework of international criminal law has actually been able to push aside the principle of sovereignty of the nation state, there are those who have interpreted the category of crimes against humanity as paradigmatic and a breaking point in history where the human being is placed before state sovereignty.

      Margaret McAuliffe deGuzman 18 argues that crimes against humanity are the result of a decision to relinquish sovereignty, which ". In the same sense, Bryan Turner 19 contends that "[c]rimes against humanity have led to a greater awareness and acceptance of the notion of a common humanity.

      Treating other human beings as members of a common humanity is thus a radical historical development. Finally, it is important to highlight the work of David Hirsh, 21 who argues that cosmopolitan criminal law is concerned with crimes that transcend boundaries 'both spatially and conceptually. The prosecution of crimes against humanity in Nuremberg was a cosmopolitan act, a recognition that the acts committed didn't fall under the jurisdiction of any state but it was the responsibility of all human beings.

      This notion of administering justice in the name of 'humanity' informed the legal framework. In fact, "[t]he concept of 'humanity' —the belief that 'all humanity is one undivided and indivisible family'— has. On the one hand, a reference to humanity as a community affected by these crimes can be found in the opening statement of Justice Robert H. Jackson to the International Military Tribunal of Nuremberg, in which he stated: "The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated.

      That four great nations [United Kingdom, United States, Soviet Union and France], flushed with victory and stung with injury, stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power ever has paid to Reason". Erdemovic 26 stated that crimes against humanity ".. It is therefore the concept of humanity as victim which essentially characterizes crimes against humanity. There is also an initiative from the Washington University School of Law 28 that contains a proposed 'International Convention on the Prevention and Punishment of Crimes against Humanity.

      Juan E. Cherif Bassiouni and Richard Goldstone , and in the preamble of the proposed convention they included a reference to the 'common bonds' and 'common values' that we share, to 'humanity' and the 'shock to the conscience of humanity' that these crimes imply. This section has sought to show how crimes against humanity are based on a cosmopolitan worldview and in the existence of humanity as a 'political community of justice. However, despite the support found in the literature and the optimistic account on the influence of crimes against humanity in the rupture of sovereignty and in the incorporation of a 'political community of justice' based on our common humanity, the following section will examine the arguments against the 'paradigm shift' position that is so profusely used in the human rights and criminal law discourse; as well as examine the functioning of some international and domestic courts in the prosecution of crimes against humanity, in order to show how the 'community' that these tribunals are speaking to and acting in the name of, is still very much linked to the nation-state.

      Even though the legitimacy and strength of the discourse that informs crimes against humanity is based on its appeal to the existence of a 'political community of justice' grounded on our common humanity, and on the role of criminal tribunals in adjudicating justice in the name of humanity, this does not necessarily imply that this community has effectively come into being. In fact, there is a possibility that crimes against humanity, as a means of prosecuting gross human rights violations, has not been able to move past the well-known and deeply rooted community of justice that is framed around the membership to a nation-state.

      This chapter will suggest that, contrary to what the discourse surrounding crimes against humanity has endeavoured to achieve, there has been no 'shift of paradigm. Firstly, the resilience of the 'political community of justice' grounded on the nation-state could be attributed to a structural problem which derives from seeking to prosecute gross human rights violations through legal instruments that are the product of an international community made up of states.