CHAOS AS UTOPIA: INTERNATIONAL CRIMINAL PROSECUTIONS AS A CHALLENGE TO STATE POWER

• DOI: https://doi.org/10.1016/S1059-4337(03)31001-4
• Pages: 3-23
• Published date: 10 December 2003
• Date: 10 December 2003
• Author: Lisa Hajjar

CHAOS AS UTOPIA: INTERNATIONAL

CRIMINAL PROSECUTIONS AS A

CHALLENGE TO STATE POWER

Lisa Hajjar

INTRODUCTION

Utopia, a term first coined by Sir Thomas More in the sixteenth century,referred to

a place of unattainable social perfection. But the appeal of a concept that embraces

rather than mocks the imagination has broadened its meanings and uses. In the

early twentieth century, Anatole France wrote, “Out of generous dreams come

beneficial realities. Utopia is the principle of all progress, and the essay into a

better future.” In contemporary vernacular, utopia has come to refer not only to

imagining perfection but cures for imperfection. By this definition, any struggle for

rights could be conceived as utopian to the extent that it represents a desire to make

the world a better place for the would-be beneficiaries. The utopianism of rights

envisions conditions in which human dignity can be ensured and vulnerability

minimized.

Humanrightsareveryobviouslyutopianbecausetheyenshrine the assumption –

and assertion – that all human beings are equal in their humanity,and are entitled to

a common set of rights. Their utopianism lies not only in the promises of equality,

freedoms and protections, but the enduring distance or disjuncture between those

promises and people’s lived realities. According to Richard Wilson,

Notwithstanding disputes overtheir conceptualization and application, human rights are among

thefewutopian ideals left, and thereisstill a remarkable degree ofconsensusby governments on

the principle at least that certain rights be protected under international law (Wilson,1997,p.1).

Studies in Law, Politics, and Society

Studies in Law, Politics, and Society,Volume 31, 3–23

© 2004 Published by Elsevier Ltd.

ISSN: 1059-4337/doi:10.1016/S1059-4337(03)31001-4

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4 LISA HAJJAR

Like many utopian projects, human rights are infused with violence. They were

created on a foundation of violence, and legitimized as a rejoinder to violence of

an unprecedented intensity and organization. While history prior to World War II

was replete with genocides and massacres, forced concentrations and “cleansings”

of populations from territories, torture, slavery, systematic rape and so on, the

perpetration of those acts as well-planned policies by modern states inspired a

veritable revolution in international law to make such practices illegal and, more

generally, to forge heretofore non-existent or under-articulated protections and

freedoms for human beings.

However, in the post-war process of international law making and reform, the

original utopian vision of the “moral entrepreneurs” who had shepherded universal

human rights onto the international stage, and who had hoped to put humans’

interests above states’ interests, was eclipsed as state actors commandeered the

idea (see Keck & Sikkink, 1998; Lauren, 1998). Although human beings would be

the ostensible beneficiaries of international human rights, the framework instituted

to establish them did not challenge states’ power and authority over their subjects,

or the state-centrism of the international order. Rather,the creation of human rights

entailedtheelaborationofnew international legal norms of governmenttowhichall

states would be expected to adhere. Consequently while states’ rights were revised

(e.g. they could no longer claim the “right” to exterminate civilians as a sovereign

prerogative), they retained their status as the premiere subjects of international

law. Put simply, human rights obtained their “universalizing” character from the

fact that people are subjects of states, and states are subjects of international law

(see An-Na’im, 1994).

Nevertheless, positive law developments, starting in 1948 with the Genocide

Convention and the Universal Declaration of Human Rights, fueled an inter-

nationalized socio-legal imagination, and over time inspired various sorts of

activism to substantiate the human rights idea. Proponents of human rights have

found common cause in the belief that international law can be a resource to aid

the weak and protect the vulnerable. For this reason, human rights discourse and

practice have been framed as “idealist” and counterposed to “realist” discourses

and practices that emphasize the exercise and interests of power. Of course, this

counter-positioning of legal idealism with political realism is misleading; human

rights are constructs of international laws, which are made and modified by

representatives of states and thus are themselves manifestations of power. The

idealist-realist dichotomy has reflected, primarily, a difference in priorities (see

Slaughter, Tulumello & Wood, 1998).

For decades, human rights advocacy was idealistic because it found little

resonance or support in political practice, especially the goals of preventing

or deterring violations and holding violators accountable. The principle of