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Genocide and Belonging: Processes of Imagining Communities

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Genocide and Belonging: Processes of Imagining Communities GENOCIDE AND BELONGING: PROCESSES OF IMAGINING COMMUNITIES ADENO ADDIS* ABSTRACT Genocide is often referred to as “the crime of crimes.” It is a crime that is very high on the nastiness scale. The purpose of the genocidaire is of course to destroy a community—a community that he regards as a threat to his own community, whether the threat is perceived as physical, economic or cultural. The way this takes place and the complicity of law in this process has been extensively explored by scholars. But the process of destroying a community is perversely often simultaneously an “exercise in community build- ing,” a process through which intra-communal bonds and belong- ing are sought to be strengthened. This aspect of genocide has been entirely neglected by scholars, especially the role of law in that pro- cess. This article makes and defends two claims about communities and belonging in relation to genocide. First, it argues that as per- verse as it sounds, genocide is in fact an exercise in community building and law is highly implicated in that process. It defends the thesis with arguments that are conceptual as well as empirical. The second, and more hopeful, claim is that the international response * W. R. Irby Chair and W. Ray Forrester Professor of Public and Constitutional Law, Tulane University School of Law. Previous drafts of the paper were presented at an international conference at the Guanghua Law School of Zhejiang University (China) and at Tulane Law School faculty symposium. I thank participants at those meetings for the many helpful questions and comments. Special thanks go to Nich- olas Almendares, Onnig Dombalagian, Adam Feibelman, Marjorie Kornhauser, Shu-Yi Oei, Vernon V. Palmer, Asif H Qureshi, Keith Werhan, and Siegfried Wiessner. And I thank Victoria McIntyre of Tulane Law School for excellent re- search assistance. 1041 Published by Penn Law: Legal Scholarship Repository, 2017 1042 U. Pa. J. Int’l L. [Vol. 38:4 to prevent genocide or to punish genocidaires is itself a process in community building, a way of imagining a version of the interna- tional community, and a counter to the genocidaire’s vision of a pure and superior community. Using two international legal doc- trines—universal jurisdiction and the Responsibility to Protect (R2P)—the article shows that international responses to genocide are not simply instrumental (preventing and punishing genocide), but that they have constitutive dimensions as well. The interna- tional community that is imagined through these two doctrines is one that is diverse and vulnerable. Put simply, this article is about how communities are imagined both in their destructive and consti- tutive sense. Keywords: belonging, community, genocide, human rights, in- ternational crimes, jurisprudence, responsibility to protect, univer- sal jurisdiction https://scholarship.law.upenn.edu/jil/vol38/iss4/1 2017] Genocide and Belonging 1043 TABLE OF CONTENTS 1. Introduction: The Issue–Genocide and Belonging ........... 1044 2. Genocide: A (Not So) Brief Outline ..................................... 1050 3. Genocide and the Process of Imagining Communities ..... 1057 3.1. Communities and Positive Sentiments .............................. 1057 3.2. Communities and Consequences ....................................... 1058 4. Genocide, Law and Belonging .............................................. 1065 5. International Response to Genocide: Imagining the International Community ..................................................... 1071 5.1. Universal Jurisdiction ....................................................... 1072 5.2. Responsibility to Protect (R2P) ......................................... 1074 5.3. Universal Jurisdiction and R2P: Comparison and Summary ........................................................................... 1078 5.4. What Makes Genocide an Offense Eligible for R2P and Universal Jurisdiction: Current Accounts ....................... 1080 5.4.1. Genocide “Shocks” the Conscience ......................... 1080 5.4.2. Genocide and Chaos ................................................ 1084 5.5. International Response to Genocide: Ways of Imagining the International Community .................................................. 1086 5.5.1. Homo Sapiens and Nature: A Way of Imagining the International Community? ..................................... 1088 5.5.2. The International Community and the Outlaw Other— Another Way of Imagining the International Community ............................................................................................ 1089 5.5.2.1. The International Community and Secondary Responsibility ............................................................. 1089 5.5.2.2. Hostis Humani Generis: The Genocidaire as the Enemy of All of Us ..................................................... 1091 5.5.2.3. Diversity and Vulnerability ......................... 1094 5.5.2.4. Defining (Imagining) the International Commu- nity From Above and From Below ............................. 1095 6. The International Community and Genocide Watch: Respon- sibility to Protect and Civil Society ....................................... 1104 7. Conclusion ............................................................................... 1109 Published by Penn Law: Legal Scholarship Repository, 2017 1044 U. Pa. J. Int’l L. [Vol. 38:4 1. INTRODUCTION: THE ISSUE–GENOCIDE AND BELONGING One of the most important questions in the globalized world in which we live is the issue of belonging. Of course, belonging has always been an important issue, for to belong is a fundamental hu- man quest.1 One’s identity, an indispensable feature of one’s life, is tied to what, to whom and how one belongs.2 Although the quest for belonging has always been with us, the issue has recently emerged with more intensity and urgency. There are at least two reasons why the issue has currently become a press- ing issue. First, globalization has increasingly destabilized tradi- tional (generally accepted) forms of belonging and units to which one belongs. The manner in which boundaries are drawn and the very issue of what constitutes a boundary and a community are con- stantly changing.3 This has led many to worry as to where and how they belong. Indeed, globalization has led to two seemingly contra- dictory tendencies. On the one hand, there is a visible move to form- ing greater or larger unions among political units, either on a com- prehensive or limited basis. Although currently under considerable 1 Roger Cohen, The Quest to Belong, N.Y. TIMES, Nov. 29, 2013, at A39, http://www.nytimes.com/2013/11/29/opinion/cohen-the-quest-to-belong.html [https://perma.cc/XMG4-SQ7H] (“If you dig into people who are depressed, you often find that their distress at some level is linked to a sense of not fitting in, an anxiety about where they belong: displacement anguish.”). 2 See WILLIAM E. CONNOLLY, IDENTITY\DIFFERENCE: DEMOCRATIC NEGOTIATIONS OF POLITICAL PARADOX 158 (1991) (“Identity, in some modality or other, is an indis- pensable feature of human life”). 3 Adeno Addis, Community and Jurisdictional Authority, in BEYOND EXTRATERRITORIALITY: TRANSNATIONAL LEGAL AUTHORITY IN AN AGE OF GLOBALIZATION 32 (Gunther Handl, Joachim Zekoll and Peer Zumbansen eds. 2012) (“Indeed, in the era of globalization, the process of continuous change may be one of the most salient and most permanent features of communities.”). See Adeno Ad- dis, Imagining the Homeland from Afar: Community and Peoplehood in the Age of the Diaspora, 45 VAND. J. TRANSNAT’L L. 963, 1039–40 (2012) (arguing that boundaries that form communities are not necessarily territorial and they often overlap). Idriss Fofana, A Crisis of Belonging, HARV. INT’L REV. 34, 34 (2009) (“Relations between Rwanda and the DRC [Democratic Republic of Congo] have been long affected by a crisis of belonging among ethnic Rwandans in the eastern DRC. Since the early colonial times, the Kivu Provinces have served as the refuge of choice for the losers of Rwanda’s brutal power policies. Every new large migration into DRC has raised the question of who among the country’s many ethnic Rwandans should count as Congolese.”). https://scholarship.law.upenn.edu/jil/vol38/iss4/1 2017] Genocide and Belonging 1045 stress, the European Union is one obvious example of a comprehen- sive union. By “comprehensive union” I refer to a union across many areas—economic, political, monetary, defense, etc. But there are other unions that are limited to specific areas of life. One exam- ple is the World Trade Organization (WTO) whose primary function is said to be one of ensuring free and orderly trade among states. The desire for forming larger unions is informed by the fact that many issues—e.g. economic, security, and environmental—are in- creasingly proving to be beyond the capacity of one state, even a relatively powerful one, to deal with.4 On the other hand, globalization seems also to lead to more frag- mentation where groups (ethnic, linguistic, racial, religious) seek to reassert their “local” (as opposed to “national”) identities as more secure sources of belonging in this globalized world of uncertainty or, to borrow a phrase from W.H. Auden, in “an age of anxiety.”5 The most virulent attempts to slow down the speed of globalization have taken the forms of religious and ethnic fundamentalism.6 I think the late great anthropologist, Clifford Geertz, was correct in his observation that the world is “growing both more global and more divided, more thoroughly interconnected and
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