1
“At a time when everything has been globalized,
from capital to communications to production,
what about justice, what about its globalization?
In an age when humanity is being redefined and unified
across frontiers, who speaks in humanity’s name, who
judges and punishes in the name of that humanity?”
Ariel Dorfman
1
1. Introduction
*
The twentieth century has not only seen crimes on an unprecedented scale, but also
an ambitious project of punishing these very crimes. The moral outrage at the Nazi
extermination camps gave rise to the notion of a crime against humanity; a crime that offends
the human status and humanity at large. The international community pledged that crimes of
this quality would no longer be viewed as a domestic matter of the state in which they were
committed. Even though “crimes against humanity” is primarily a legal concept, it is based
on moral justifications, and the legal developments of the concept have followed moral
considerations. Crimes against humanity as understood in international law can be
perpetrated against any civilian population, including the state’s own citizens and stateless
persons. These crimes have been connected to the equally novel principle of universal
jurisdiction: any state might exercise jurisdiction over these crimes “considered particularly
heinous or offensive to mankind, regardless of any nexus the state may have with the
offense, the offender, or the victim”
2
—the nexus between the prosecuting state and the
crime being merely common humanity. More than fifty years after this inception of
1
Ariel Dorfman, Exorcising Terror: The Incredible Unending Trial of General Augusto Pinochet (New York: Seven
Stories Press, 2002), 39.
*
This paper benefits from invaluable comments and suggestions by Nancy Fraser, Richard Bernstein, Ross
Poole, Nehal Bhuta, and the Fall 2002 Fellows at the Transregional Center for Democratic Studies (TCDS) of
the New School for Social Research, New York.
2
Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities Under International Law, 2
nd
ed. (New
York: Oxford University Press, 2001), 161.
Convention