Does the category of “crime against humanity” seem to you to be a good juridical construction of what you call tremendum horrendum?
It is probably an indispensable – yet debatable – effort
to give a juridical form to the discontinuity between war crimes and mass
extermination. When countries are at war
with one another, they function as authoritarian regimes in relation to one
another, following the Schmittian categories of friend-enemy; they commit acts
that correspond to this type of relation, and these are acts of death; what are
called “war crimes” correspond to an excess tied to this functioning of
authoritarian regimes.
But war crimes are not acts of mass extermination. In the latter case, what is at issue is the
very fact of being born this or that, the fact that extermination is the
reverse of birth; it is being born that is the crime. The son of a resister is not a resister; but
the son of a Jewish woman is a Jew.
In what case, then, is the term “crime against humanity”
appropriate? It is perfectly appropriate
in the case of the Shoah, if not exclusively, at least in an exemplary
manner. For this is where, in a very
specific fashion, the designation of the victim was made on the basis of
birth. But then what about other
genocides? It is true that the term
”genocide” is sometimes abused; there is a certain inflation in the use of this
term. But it is also true that those who
suffer it have the right to see it as genocide, since they are designated as
victims by reason of who they are and not for what they have done. It is through them, individually, that the
crime passes. Here we find a
manifestation of what I earlier called the dispersion of evil, its
discontinuous and properly diabolical, irruption. The enigma of the noncumulative character of
the figures of evil in specific events is not without an effect on the notion
of genocide, which perhaps participates in a nontotalizable dispersion.
As you can see, I am quite hesitant about this notion, which incontestably has great power in the framework of what could be termed militant thinking, but possesses less clarity for a conceptually organized philosophical reflection.
Moreover, there is in the category of crimes against
humanity, in the fact that it was applied retroactively, a certain violation of
the tradition of penal law; it is after the fact that the acts committed
previously are defined in this way. Of
course, one can say that they were already crimes against humanity; but
then one finds oneself on the plane of ontology, although this too is not
without a certain justification, since these acts had themselves ontologized
the victim, by designating the victim by reason of his or her birth. What occurs is something like an ontological
transfer from the nature of the victim to the definition of the act. Nevertheless, the juridical tradition resists
this approach.[1]
[1]
Paul Ricoeur, Critique and Conviction: Conversations with François
Azouvi and Marc de Launay, tr. Kathleen Blamey (Cambridge: Polity Press,
1998), pp. 112,113 [Original French edition published in 1995].
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