ORBIT-OnlineRepository ofBirkbeckInstitutionalTheses Enabling Open Access to Birkbeck’s Research Degree output Criminal trials, economic dimensions of state crime, and the politics of time in international criminal law : a German-Argentine constellation https://eprints.bbk.ac.uk/id/eprint/40304/ Version: Full Version Citation: Franzki, Hannah C. (2018) Criminal trials, economic dimen- sions of state crime, and the politics of time in international criminal law : a German-Argentine constellation. [Thesis] (Unpublished) c 2020 The Author(s) All material available through ORBIT is protected by intellectual property law, including copy- right law. Any use made of the contents should comply with the relevant law. Deposit Guide Contact: email Criminal Trials, Economic Dimensions of State Crime, and the Politics of Time in International Criminal Law A German-Argentine constellation Hannah C. Franzki School of Law Birkbeck College, University of London Thesis Submitted for the Degree of Doctor of Philosophy December 2016 2 I hereby declare that the work presented in this thesis is my own, except where explicit reference is made to the work of others. Hannah C. Franzki 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 3 Abstract 4 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. Acknowledgments An important part of this thesis aims at bringing into relief the contingency of the way in which theories of legal responsibility distinguish those acts that are considered relevant to a particular outcome – the crime – from those that are not. Against this backdrop, there is a certain irony in the attempt to identify the people who have been important in the process of planning, writing and finishing this thesis. The acknowledgments that follow cannot but betray their purpose, namely to reflect the voluntary and involuntary, direct and indirect contributions friends and colleagues have made to this thesis. I wish to thank Peter Fitzpatrick, my supervisor at the Birkbeck School of Law, who encouraged me to open up to a wide range of literature before taking the labour to pin it all down again. He also is responsible for my first encounter with the work of Walter Benjamin that eventually became so central to this thesis. Without those readings groups at Peter’s office, his attentive literature recommendations over the years and the detailed feedback on first chapter drafts, this thesis would have been a different one. The Birkbeck School of Law in general has been a great environment. I am still amazed by that bunch of wonderful individuals who make up the PhD community. Thanks for sharing politics, academia and dance floors alike. In particular I would like to mention Tara Mulqueen, dear friend, for sharing house, thoughts and advice on all matters concerning life; Carolina Olarte Olarte, for sharing the feeling of urgency about this project and for her helpful comments on several chapters; Basak Ertur, whom I admire for her ability to say big things with small words. She offered her wise comments at the right time; Mayur Suresh, without whom I would not have survived those long days at the British Library. Alexis Alvarez, for the fruitful exchange on what could be labeled ‘Benjamin in Argentina’. Kanika Sharma, Daniel Matthews and Paddy McPaid, for having dedicated their time to copy-editing bits and pieces of this thesis at different stages. I am glad to have bumped into Grietje Baars during my first year in London. As a colleague, I want to thank her for generously sharing her knowledge and sources on the German industrialist trials. As a friend, I am indebted to her for all those hours that we spent bent over a jigsaw puzzle, talking and organizing our thoughts after long days of work. 5 Acknowledgments 6 I met Marisa Fassi and Paz Irrazazabal for the first time in London, but they have acquired a continuous virtual presence over the last three years. I have to thank them for unconditional support and much needed advice on how to finish a PhD while real life happens. An important part of the research for this project was carried out in Argentina. I have to thank José Bellido for putting me in touch with Oriana Seccia, who opened the doors of her apartment on Aranguren when I most needed it. Over the last four years I learned that she is not only an excellent host and bright scholar, but above all an amazing friend. I am grateful that my path crossed the one of Alejandra Dandan in Jujuy. Writing with her taught me about the importance of telling stories. I wish I had some of her productive impatience. Pablo Pelazzo opened the doors of his house when I first arrived in Jujuy. He shared his knowledge and doubts, books and documents. Many of my observations and arguments on what I call the Ledesma trial took their shape in conversations with him. I am full of gratitude for the time we shared. Still in Argentina, I have to thank Juan Pablo Bohoslavsky for giving me the opportunity to make some of the writing that emerged from this research available to the Argentine reader. Back in Europe, I want to thank Wolfgang Kaleck from the European Centre for Constitutional and Human Rights in Berlin. From the very beginning of this project he has been an important sparring partner for testing ideas and arguments on the trials in Argentina. More than once he made me change my mind. Andreas Fischer-Lescano has also accompanied this project since the very beginning. I got helpful feedback on my work when presenting my work at his postgraduate colloquium on several occasions. It also turns out that Andreas is an excellent boss. Not only, but also because he generously spared me with work to be able to finish this project over the last year. Staying somewhere between Bremen and Berlin, I would like to thank Johan Horst and Kolja Möller for being such a great company, and for giving me the opportunity to test ideas on them over lunch at the WZB. I am glad to have crossed paths again with Gianna Schlichte in Bremen after our first encounter in Marburg several years ago. Her feedback on two of the chapters was of immense help. I also want to thank Matthias Ebenau, who some years ago encouraged me ask the ‘economic’ question; Nicolas Iglesias Schneider and Stefanie Kreher for providing me with a desk in their wonderful garden in Solymar and for giving me a crash course in Christian theology; Raphael Susewind for his encouraging feedback on the very first draft of the very first chapter several years ago. Finally thanks to all those who reminded me of the fact that there is a world in which time is not counted in number of words (you know who you are).