Book Review: The Humanity of Universal Crime: Inclusion,Inequality,and Intervention in International Political Thought,by Sinja Graf

The expression “crimes against humanity” was used by Lloyd George to characterize the Kaiser’s actions in initiating the Great War and figured again during the Nuremberg trials. In both cases, what was adverted to was principally wars of aggression rather than atrocity and genocide. However, from the 1990s onward, the expression came to signify atrocity, including atrocities by governments and leaders against their own people, and it became a legal offense that could be tried, for instance, by the International Criminal Court. ¹ The allegation of such a crime has been used as a justification for invasion of sovereign nation-states, and the expression circulates very widely in popular discourses. The Humanity of Universal Crime suggests that while “crimes against humanity” is a relatively recent invention, it has a much deeper genealogy in the form of the more elemental idea of “universal crime,” and it seeks to trace that genealogy through European international legal and political thought. Sinja Graf argues that in the past, as now, universal crime has invoked a collective and normatively integrated “humanity” in the very process of “dividing” it between those who uphold and those who offend against these norms and therefore are punishable. In her words, “notions of universal crime can provide for the uneven inclusion of foreign societies in ways that both subordinate them to the allegedly legitimate power of others and authorize imperial interventions as attempts to redress universal wrongs in the name of humanity” (77). She further seeks to show that the “political productivity” of invoking an idea of universal crime has been, more often than not, to position European states as the exemplars and enforcers of these human and thus universal norms against non-Europeans, who are frequently found to be in violation of them.

The introduction and the first chapter set out why the author thinks that universal crime, even though it has not yet been the subject of sustained inquiry, is of historical and intellectual importance: it has created “a distinctly political vision of humanity, one that combines inclusion with hierarchy and claims to justice with claims to legitimate coercion” (27). As with some other recent literature, Graf wishes to show that it was not that some were “excluded” from the definition of “humanity,” but rather that they were included not as equals but as lesser—as having violated normative bonds that must be reaffirmed and maintained through punishment of the offenders. Whether the mere fact of inclusion in humanity in this manner constitutes a hierarchical ordering of humanity, or whether this is because the normative bonds that are held to constitute and characterize that collective subject are in fact the norms of Europeans rather than all humans, is not entirely clear—a point to which I will return.

Graf seeks to show that the notion of universal crime, and thus the invocation of a humanity bound together by shared and enforceable norms, has a long history. The second chapter seeks to show that this goes back all the way to John Locke. In the Second Treatise of Government Locke argues that, in the state of nature, the earth is given to all humankind by God, and that those who fail to cultivate it and make it fruitful “trespass against the whole species” and not merely against individuals. Thus the Indians of America, whom Locke took to be hunter-gatherers, were guilty of a “universal crime” that humankind—in the form of the European settler—was entitled, even obliged, to punish. Indigenous claims to property and sovereignty were thus erased, not because Locke failed to include the Native American equally within natural law, but because “the particular stipulations held as universal relegate her to the position of the universal criminal” (52). Graf offers an original and partly persuasive reading of Locke, although one almost wholly based upon chapter V of the Second Treatise, with little reference to other of his writings. Graf arrives at the important conclusion that while Locke did not invoke civilizational or racial differences, and in that sense was not, as David Armitage argues in his Foundations of Modern International Thought, an imperial theorist (oddly, this chapter is bookended by references to Armitage, as if the entire chapter was a disagreement with him), nonetheless, “The distinct kind of inclusion that the notion of universal crime enables allows Locke to set up hierarchies internal to his liberal universalism” (73).

If the notion of universal crime was one of the chief ways in which hierarchies between peoples—specifically, between European states and European settlers on the one hand and conquered and colonized peoples on the other—were established, then the nineteenth-century heyday of colonialism should have seen this category come into its own. In chapter three Graf concedes that it did not, and that this century was characterized by the “exclusion” of non-European states from the force of international law, which was held to be a European (and sometimes Christian) product rather than a natural law equally binding on all of humankind. Indeed, the notion of a universal crime was more often invoked by those seeking to abolish the slave trade and slavery than by those justifying these, or justifying conquest and colonial rule, thereby revealing “the malleability of political invocations of universal crime” and demonstrating that “Notions of universal crime are not by their nature part and parcel of justificatory claims to imperial rule” (78, 107). However, even as she draws extensively upon the work of Jennifer Pitts, Graf disagrees with Pitts’s characterization of the nineteenth century as one that saw a retreat from universality in the form of a “turn to empire.” Graf argues that this “turn” simply replaced an “inclusionary Eurocentrism” with an “exclusionary” one, as international lawyers (this is the period when international law becomes professionalized) agreed that international law did not apply to or protect “barbarians,” “savages,” and the “uncivilized.”

The final substantive chapter returns us to the present and to the idea of “crimes against humanity,” which, the book has sought to show, is “the contemporary expression of the idea of a universal crime” (113). Graf offers a critique of those forms of liberal “cosmopolitanism” that invoke a normative universalism arising out of and anchored in “humanity” to justify “global policing” (i.e., military interventions) against those who violate these norms. Seyla Benhabib and (at greater length) Jürgen Habermas are her main targets. Against Benhabib, Graf persuasively argues that the deliberative democracy that is supposed to sanction criminal law and punishments arising out of the application of this law does not apply at the international level, where in the absence of a global polity, those punished (bombed, invaded, etc.) cannot be seen as the authors of the laws invoked against them. Moreover, “humanitarian interventions” (which are usually against individuals and states in the global South) often take the form of acts of war, with costs in human lives that are incompatible with the redefinition of these acts as “policing.” Graf is also convincing in her refutation of Habermas, who supported the NATO intervention over the issue of Kosovo (and also the first Gulf War), but vehemently denounced the US-led war on Iraq, principally by making a distinction between the violation of human rights (by the Iraqi regime) and the (greater offense) of crimes against humanity (in Kosovo). In the absence of a global deliberative democracy that would allow us to say that the offenders were the authors of the laws they violated, Habermas argues that global moral outrage at the crimes committed in Kosovo functions as an adequate substitute. Graf has little trouble in showing that this is a weak argument, one at odds with the general thrust of Habermas’s work and, moreover, one that reinforces the conclusion that Western states are the bearers and enforcers of cosmopolitan/universal legal principles and norms. This refutation is done well and is welcome, although it must be added that it requires no great ingenuity. Habermas’s invocation of affect as a justification for redescribing acts of war as policing actions is a very weak argument indeed, and demonstrating that Habermas’s thought is Eurocentric is almost redundant for someone who has consistently held that that the “unfinished” and historically progressive “project of modernity” originated in Europe, which remains its driving force.

Graf successfully demonstrates, as she puts it in her conclusion, that invoking man or “humanity” instead of the citizen in international contexts does not necessarily betoken “a morally improved world,” but rather often functions as a way “of articulating the hierarchies of humanity in a normative key” (173). The Humanity of Universal Crime ends by contrasting those who, in speaking of an Anthropocene, treat humanity as the agent responsible for climate change and those who—in parallel with her critique of universal crime, as she sees it—argue that this willfully overlooks the unequal positions and responsibilities of those gathered under this homogenizing rubric. I am unconvinced that there is a parallel here, and this very brief and sketchy treatment of a complex issue is an unfortunate note on which to end an otherwise interesting book.

Earlier I adverted to what I see as an ambiguity in the argument. At times Graf seems to suggest that the very fact of invoking “humanity” in the context of “universal crime” generates differentiation and hierarchy: “Once tied to a law that can be contravened, humanity spans a spectrum of normatively ranked positions ranging from the law-abiding to the law-breakers. . . . Such a vision of mankind therefore depends on treating the aberrant and the compliant unequally, which renders it markedly different from an ethical imagination of mankind as a unified community of free and equal members” (5). But I do not see that the second sentence follows from the first. Domestic or municipal criminal law also presupposes a normative community and by definition allows that there will be law breakers, but we do not thereby say this alone makes it unequal or hierarchical. This requires an additional argumentative step—one that has been taken, for instance, by those who show that American law effectively works to criminalize minorities—a step showing that the norms of this community are in fact the norms of those dominant within it. It is indeed a key argument of this book that invocations of universal crime articulate the norms and serve the interests of the wealthy and powerful (and mostly Western) nations, and it is a very important one, but it is not the same as suggesting that positing universal crimes against humanity in and of itself creates hierarchy and inequality.

There are also some omissions (apart from the inexplicable absence of a bibliography) that, while they would not necessarily have compromised the arguments advanced in The Humanity of Universal Crime, might have extended and complicated these in interesting ways. The Nuremberg trials warranted detailed treatment, rather than the occasional cursory references offered here. Slavery and the slave trade are more-or-less coterminous with the beginnings of the notion of what Graf calls universal crime, and it would have been interesting to know how—apart from the use of this notion by abolitionists—invocations of humanity and universal crime intersected with the enslavement of humans. And greater acknowledgment and some engagement with those non-Western critics of the uses and misuses of “humanity” and “humanism”—Fanon and Césaire among them—would have added some range and depth to a book that is otherwise almost wholly concerned with Western thinkers and with the natural and positive international law traditions of Europe.

There is by now a substantial body of literature that shows that the social arrangements and normative standards often proclaimed to be universal are particular to Europe. The previously mentioned criticisms notwithstanding, this mostly well-argued and thought-provoking work is a welcome addition to this literature. It convincingly shows that current efforts to invoke “humanity” as a moral reference point do not always herald an expansion of our moral horizons and demonstrates that such efforts have a prehistory in which “human” all too often meant European, or white.