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Crimes Against Humanity, Dehumanization and Rehumanization: Reading the Case of Duch with Hannah Arendt

Published online by Cambridge University Press:  26 July 2016

Luigi Corrias
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Abstract

The concept of humanity takes up a prominent place in the discourse on international (criminal) law. It remains, however, unclear what exactly is meant by an invocation of humanity. In this article, I aim to contribute to an elucidation of this concept. For this purpose, I will first analyse how the concept of crimes against humanity and the related notions of dehumanization and rehumanization are employed in the case of Duch, the chairman of the infamous Cambodian S-21 prison which functioned under the Khmer Rouge. Second, I will put these findings in a philosophical context. Building on the work of Hannah Arendt, I will devise a conceptual framework to analyse crimes against humanity, dehumanization and rehumanization in order to tease out what is at issue in the concept of humanity in international (criminal) law.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 29 , Issue 2 , August 2016 , pp. 351 - 370
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2016 

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Footnotes

This article was written during a sabbatical leave at the University of St. Andrews, mostly in its beautiful Martyrs Kirk Research Library. The author is grateful to Patrick Hayden for making this sabbatical possible and for encouraging comments on an earlier version of this article. Furthermore, the author would like to thank his colleague Sofia Stolk from the Vrije Universiteit Amsterdam for pointing him to the case of Duch. Lastly, the author acknowledges the helpful remarks by the anonymous reviewer of this journal.

References

1. See van Beers, Britta, Corrias, Luigi & Werner, Wouter G, eds, Humanity across International Law and Biolaw (Cambridge: Cambridge University Press, 2014).CrossRefGoogle Scholar

2. See, e.g., Robin Coupland, “Humanity: What is it and how does it influence international law?” (2001) 83:844 International Review of the Red Cross 969; Ruti Teitel, Humanity’s Law (Oxford: Oxford University Press, 2011; Ruti Teitel, “Author’s Response to Martti Koskenniemi’s Review of Humanity’s Law” (2013) 27:2 Ethics and International Affairs 233; Robert Howse & Ruti Teitel, “Does Humanity-Law Require (or Imply) a Progressive Theory of History? (And Other Questions for Martti Koskenniemi)” (2013) 27:2 Temple International and Comparative Law Journal 377.

3. See Anne Peters, “Humanity as the A and Ω of Humanity” (2009) 20:3 EJIL 513.

4. See Martti Koskenniemi, “Review of Humanity’s Law by Ruti Teitel” (2012) 26:3 Ethics and International Affairs 395. Koskenniemi relies on Carl Schmitt, The Concept of the Political, Expanded ed translated and with an Introduction by George Schwab with a Foreword by Tracy B Strong and Notes by Leo Strauss (Chicago: The University of Chicago Press, 2007) at 54.

5. See, e.g., Richard Vernon, “What Is Crime against Humanity?” (2002) 10:3 Journal of Political Philosophy 231; David Luban, “A Theory of Crimes against Humanity” (2004) 29: 1 Yale Journal of International Law 85; May, Larry, Crimes against Humanity: A Normative Account (Cambridge: Cambridge University Press, 2005);Google Scholar Christopher Macleod, “Towards a Philosophical Account of Crimes against Humanity” (2010) 21:2 EJIL 281.

6. Geras, Norman, Crimes against humanity: Birth of a concept (Manchester: Manchester University Press, 2011) at 38–74. See specifically the useful table at 39.CrossRefGoogle Scholar

7. Ibid at 63-64.

8. See, e.g., Arendt, Hannah, Eichmann in Jerusalem: Report on the Banality of Evil (London: Faber and Faber 1963)Google Scholar and Robert Fine, “Crimes against Humanity: Hannah Arendt and the Nuremberg Debates” (2000) 3:3 European Journal of Social Theory 293.

9. See, e.g., Patrick Hayden, “The Relevance of Hannah Arendt’s Reflections on Evil: Globalization and Rightlessness” (2010) 11:4 Human Rights Review 451 and Patrick Hayden, “Systemic evil and the international political imagination” (2014) 51:4 International Politics 424.

10. See David Luban, “Hannah Arendt as a Theorist of International Criminal Law” (2011) 11:3 Int’l Crim L Rev 621.

11. Based chiefly on the information on the official webpages of the ECCC: http://www.eccc.gov.kh/en (consulted 8 March 2016).

12. Law on the Establishment of Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed during the Period of Democratic Kampuchea with inclusion of amendments as promulgated on 27 October 2004, art 1-8.

13. Will Fitzgibbon, “Visions of Justice: Shakespeare and Duch’s proposed ‘return to humanity’” (2010) 11-32 ANU College of Law Research Paper, Electronic copy available at: http://ssrn.com/abstract=1948272 (consulted 8 March 2016) at 14. See also Chandler, David, Voices from S-21: Terror and History in Pol Pot’s Secret Prison (Berkeley: University of California Press, 1999).Google Scholar

14. Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 30 March 2009, Trial Day 1 at 12: “S21 was unique in the network of security centres given its direct link to the Central Committee and its role in the detention and execution of CPK cadre.”

15. Ibid at 16: “The primary role of S21 was to implement ‘[t]he Party political line regarding the enemy’ according to which prisoners ‘absolutely had to be smashed’. The term ‘smash’ was used and widely understood at the relevant time to mean ‘kill’. Every prisoner who arrived at S21 was destined for execution.”

16. Ibid at 19: “Duch recognized that his role as Chairman of S21 was to focus the office on smashing purported traitors within the ranks of the revolution itself.”

17. Ibid at 22: “In addition to executing prisoners condemned in advance as traitors, an overriding purpose of S21 was to extract confessions from prisoners in order to uncover further networks of possible traitors.”

18. Ibid at 40: “Duch confirmed that the use of torture within S21 was systematic and noted that ‘anyone taken for interrogation mostly could not avoid torture’.”

19. Ibid at 43 and 44-45.

20. Ibid at 51-52: “following an incident where a prisoner was killed before the completion of his interrogation, Son Sen required Duch to sign off on every execution. Thereafter, Duch necessarily decided how long a prisoner would live, since he ordered their execution based on a personal determination of whether a prisoner had fully confessed. As there was no right to release, there was an implicit standing order from Duch, as Chairman, to kill prisoners according to the system created at S21.”

21. Ibid at 33: “Prisoners were kept in restraints nearly twenty-four hours a day. (…) Stringent rules governed the lives of prisoners and deprived them of the most basic human needs.”

22. Ibid at 35. See also at 57: “Some prisoners were killed by having large quantities of blood withdrawn by medics.”

23. ECCC, Office of the Co-Investigating Judges, Closing Order Indicting Kaing Geuk Eav alias Duch (8 August 2008) at 40.

24. Ibid at 41.

25. Ibid at 2.

26. Ibid at 41.

27. Fitzgibbon, supra note 13 at 17.

28. ‘Closing Order’, supra note 23 at 42.

29. Ibid at 41.

30. Ibid at 43.

31. apologies can even be found in a separate document (‘Compilation of statements of apology made by Kaing Guek Eav alias Duch during the proceedings’) at the website of the ECCC. Note that there is more than one version of this document. I relied on the one which may be found at http://www.eccc.gov.kh/sites/default/files/publications/Case001Apology_En_low_res.pdf (consulted 8 March 2016).

32. Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 25 November 2009, Trial Day 75 at 4.

33. Ibid at 18. It is in this context that Smith quotes the work of Hannah Arendt: “As the philosopher and Holocaust survivor, Hannah Arendt states: ‘Terror turns not only against its enemies but against its friends and supporters as well. The climax of terror is reached when the police state begins to devour its own children; when yesterday’s executioner becomes today’s victim.’”

34. Ibid at 5: “The essence of committing a crime via JCE is that individuals in positions of power must be held accountable for the full extent of their criminal responsibility. The gravity of their criminality comes from their grand criminal vision. It comes from the abuse of their power and authority through which they employ others as tools to achieve their criminal objectives.” See also at 35, where Smith describes Duch as the “loyal and dedicated agent” of the system, because “he engineered, perfected and meticulously managed the CPK’s most effective killing machine.”

35. Ibid at 8.

36. Ibid at 12.

37. Ibid at 18.

38. Ibid at 23.

39 Ibid at 29-30.

40. Ibid at 31-32.

41. Ibid at 34: “Let’s recall that unlike his prisoners at S-21 to whom this accused denied even the slightest shred of humanity, he has been met with open even-handed justice in this Court. He has received a fair trial in accordance with the law and a bench of independent and impartial judges. If convicted, he will be sentenced to a punishment proportionate to those crimes. Although he belonged to one of the most murderous and barbarous regimes in the history of mankind, he will be sentenced only for the crimes he committed. At S-21, prisoners never received such treatment. (…) On the contrary, the accused insured they were treated as animals. To him, they were enemies of the state who deserved no mercy and no compassion.”

42. Ibid at 35-36: “Mr. President, allow me to refer to a quote which encapsulates the dilemma that human dignity would have put before the accused when he perpetrated these crimes. William Shawcross, the leading British prosecutor at the Nuremburg War Crimes Trial, said: ‘There comes a point when a man must refuse to answer to his leader if he is also to answer to his own conscience.’ Your Honours, in committing these crimes, the accused abandoned his conscience. In fact, he abandoned every duty we, as human beings, owe to one another.”

43. Ibid at 37-38.

44. For a somewhat related idea of representation, see Corrias, Luigi, “The inhuman stain: representing humanity in international criminal law” in van Beers, Britta, Corrias, Luigi & Werner, Wouter G, eds, Humanity across International Law and Biolaw (Cambridge: Cambridge University Press, 2014) 67.CrossRefGoogle Scholar

45. Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 26 November 2009, Trial Day 76 at 102.

46. Ibid at 103.

47. Ibid at 104-05.

48. Ibid at 105.

49. Fitzgibbon, supra note 13 at 10.

50. Janicaud, Dominique, On the Human Condition (Abingdon: Routledge, 2005) at 20–21.Google Scholar

51. Transcript “Duch”, 26 November 2009, supra note 45 at 18.

52. Ibid at 19. See also Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 31 March 2009, Trial Day 2 at 78 and 80, where Kar Savuth, Duch’s Cambodian defence lawyer, uses the same expression to criticize the fact that Duch alone of 196 prison heads under the Khmer Rouge regime is brought to trial.

53. Transcript “Duch”, 26 November 2009, supra note 45 at 19.

54. ‘Compilation of statements of apology’, supra note 31 at 3. (The text refers to Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 31 March 2009, Trial Day 2 at 68.)

55. Ibid at 13. (The text refers to Duch, Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 2 September 2009, Trial Day 69 at 84.)

56. Ibid. (The text refers to Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 16 September 2009, Trial Day 72 at 41.)

57. Ibid at 14. (The text refers to Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 16 September 2009, Trial Day 72 at 48. The visit to Tuol Sleng and Duch’s statement were made on 27 February 2008.)

58. Ibid. (The text refers to Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 16 September 2009 at 49.)

59. Ibid at 15. (The text refers to Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 25 November 2009, Trial Day 75 at 69.)

60. See Fitzgibbon, supra note 13.

61. Transcript “Duch”, 31 March 2009, supra note 52 at 90.

62. Ibid at 90-91.

63. Transcript “Duch”, 26 November 2009, supra note 45 at 18.

64. Ibid.

65. Ibid at 20.

66. Ibid at 5.

67. Ibid at 65 where, interestingly, Roux also makes reference to the work of Arendt. Speaking of civil disobedience, he states: “It is a practice that you know very well in Cambodia because you’re not so far from India. It is the practice, or let’s say the strategy even, that has been perfected by Mahatma Gandhi. It is the practice that is so well described by Hannah Arendt. Yes, indeed, Hannah Arendt. She didn’t only write about Eichmann, she also asked herself the right questions by stating that when situations are blocked, well then the citizens must rise and must revolt in a non-violent way and disobey the laws. Then we have to learn how to disobey.”

68. Ibid.

69. ‘Compilation of statements of apology’, supra note 31 at 15. (The text refers to Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 25 November 2009, Trial Day 75 at 68.)

70. Transcript “Duch”, 26 November 2009, supra note 45 at 64.

71. Ibid at 67.

72. Ibid at 69.

73. Ibid.

74. Ibid at 77.

75. Ibid at 79. See also at 82, where Roux, at the very end of his statement, addresses both the judges and Duch: “Duch, all your victims were your brothers and sisters in humanity. You said that you had been cowardly and that you did not go to see them while they were in detention. In human eyes, you will never be absolved of these crimes and the eyes of those you did not wish to meet will remain on you forever. But what about us, Your Honours? Are we prepared to look Duch in the eye and see him for the fellow human that he is? And the final question; through your ruling will you bring back Duch into the fold of humanity?”

76. Ibid at 66-67: “Therefore, his [i.e., Duch’s] self-depiction as a simple recipient of orders who was obliged to obey is refuted. At this point we would like to quote Hannah Arendt, from her book ‘Eichmann in Jerusalem: A Report on the Banality of Evil’ where she suggests that the Court should have told the accused, Eichmann, who as well referred to having obeyed orders, the following which I want to address to the accused. ‘There still remains the fact that you have carried out and therefore actively supported a policy of mass murder. For politics it is not like the nursery. In politics, obedience and support is the same.’”

77. Ibid at 117-18: “Furthermore, Mr. President, Your Honours, there is a third emotion that transpires from these hearings when we speak together. It is Duch’s argument, telling us that he was just a pawn, just a pawn in the Khmer Rouge machinery. Then if somebody else had been at the head of S-21, he would have done the job a bit as Eichmann has pleaded when he was in Jerusalem. This argument is not admissible.”

78. Ibid at 119.

79. In this respect, one ought to complement the conclusions reached by Fitzgibbon, supra note 13: if Roux’s attempt at a rehumanization of Duch does not succeed it is not only because of the latter’s “twisting character” but also because it remains unclear what rehumanization exactly entails and because of the one-sided breach of the “contract of humanity”.

80. Arendt, supra note 8 at 232.

81. Ibid at 239-40.

82. See Duff, Anthony, “Authority and Responsibility in International Criminal Law” in Besson, Samantha & Tasioulas, John, eds, The Philosophy of International Law (Oxford: Oxford University Press, 2010) 589.Google Scholar

83. Arendt, supra note 8 at 236.

84. Ibid at 252.

85. Ibid.

86. Ibid at 245-46. This issue is related to her views on anti-Semitism. In its most extensive form, these can be found in the first part of Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt Brace, 1973). See also: David M. Seymour, “The autonomy of the political and the dissolution of the Jews” (2007) 3:4 International Journal of Law in Context 373 at 373-87.

87. Arendt, supra note 8 at 246.

88. Ibid at 247.

89. Ibid at 252. See also Thomas Mertens, “The Eichmann Trial: Hannah Arendt’s View on the Jerusalem Court’s Competence” (2005) 6:2 German Law Journal 407.

90. Arendt, supra note 8 at 249.

91. See Luigi Corrias & Geoff Gordon, “Judging in the Name of Humanity: International Criminal Tribunals and the Representation of a Global Public” (2015) 13:1 Journal of International Criminal Justice 97.

92. Indeed, article 5 of the Law on the Establishment of the ECCC describes crimes against humanity as follows: “Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds, such as: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial, and religious grounds; other inhumane acts.” Moreover, “inhumane acts” form one aspect of the definition of crimes against humanity contained in the 2015 First Report of the Special Rapporteur on Crimes against Humanity. See Sean D Murphy, “First Report of the Special Rapporteur on Crimes Against Humanity” (2015) United Nations International Law Commission, A/CN.4/680; GWU Legal Studies Research Paper No. 2015-12; GWU Law School Public Law Research Paper No. 2015-12, available at SSRN: http://ssrn.com/abstract=2598533 (consulted 8 March 2016) at 87, in draft article 2 sub k it mentions “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

93. Arendt, supra note 8 at 253.

94. Ibid at 254.

95. Ibid.

96. Ibid at 255-56.

97. Ibid at 253.

98. Arendt, Hannah, “The Eichmann Controversy: A Letter to Gershom Scholem” in Kohn, Jerome & Feldman, Ron H, eds, Hannah Arendt: The Jewish Writings (New York: Schocken Books, 2007) 465 at 471.Google Scholar

99. Hannah Arendt, The Life of the Mind. Part one: Thinking (New York: Harcourt Brace, 1978) at 3.

100. See, for example, Arendt, supra note 86 at ix, 443, 459.

101. Arendt, supra note 99 at 4.

102. For an overview of the severe criticism when Eichmann in Jerusalem was just published, see Michael Ezra, “The Eichmann Polemics: Hannah Arendt and Her Critics” (2007) 9 Democratiya 141. For a summary of the debate sparked by the film Hannah Arendt and an alternative interpretation of the “banality of evil”, see Roger Berkowitz, “Misreading ‘Eichmann in Jerusalem”’ (2013) July 7 New York Times, available at http://opinionator.blogs.nytimes.com/2013/07/07/misreading-hannah-arendts-eichmann-in-jerusalem/?_php=true&_type=blogs&_r=1 (consulted 8 March 2016).

103. Transcript “Duch”, 26 November 2009, supra note 45 at 105.

104. Arendt, Hannah, “Thinking and Moral Considerations” in Kohn, Jerome, ed, Responsibility and Judgment (New York: Schocken Books, 2003) 159 at 165.Google Scholar

105. Arendt, supra note 99 at 4.

106. Arendt, Hannah, “Organized Guilt and Universal Responsibility” in Kohn, Jerome, ed, Essays in Understanding, 1930-1954 (New York: Schocken Books, 1994) 121 at 132.Google Scholar

107. Robert Fine, “Dehumanising the dehumanisers: reversal in human rights discourse” (2010) Journal of Global Ethics 6:2 179 at 187.

108. Transcript “Duch”, 26 November 2009, supra note 45 at 20.

109. Ibid at 69.

110. Ibid at 82.

111. See also Transcript “Duch”, 31 March 2009, supra note 52 at 82-83, where Kar Savuth states: “Madame Co-Prosecutor this morning said this prosecution is for humankind to learn as a lesson, but the humankind is not only for the Cambodian people but also for the international community.”

112. Transcript of Proceedings, “Duch” Trial Public, Trial Chamber of the Extraordinary Chambers in the Courts of Cambodia, 8 April 2009, Trial Day 6 at 64.

113. Ibid at 71.

114. Ibid at 72-73.

115. Ibid at 96-98.

116. Fine, supra note 107 at 188.

117. Arendt, Hannah, The Human Condition, 2d ed (Chicago: University of Chicago Press, 1998) at 179–80.CrossRefGoogle Scholar

118. Arendt, Hannah, “On Humanity in Dark Times: Thoughts about Lessing” in Arendt, Hannah, Men in Dark Times (New York: Harcourt Brace, 1968) 3 at 25.Google Scholar

119. Ibid.

120. See Patrick Hayden, “From Political Friendship to Befriending the World” (2015) 20:7 The European Legacy 745.