Document Type

Article

Publication Date

2003

Abstract

The advantages of world adherence to universally acceptable standards of law and fundamental rights seemed apparent after the Second World War, as they had after the First. Their appeal seems ever greater and their advocates ever more persuasive today. The history of law provides evidence that caution may be in order, however, and that the human propensity to ignore what transpires under the surface of law threatens to dull and silence the ongoing self-examination and self-criticism required in perpetuity by the law if it is to be correlated with justice.

This Essay presents one side, the dark side, of the history of the crime against humanity. It discusses the undermining and subversion of legal concepts resulting from their politicization, as they become subject to juridical argument, legal procedure, and judicial decisionmaking. So much has been written to promote the adoption of universal legal standards and urge adherence to international tribunals that I do not undertake an overview of the crime against humanity in today's legal order that reflects those reasons and advantages, or that balances one side against the other. Rather, I undertake to highlight the role that politics and ideology inevitably play in law. That role is visible when one examines some aspects of the modern legal trajectory of the crime against humanity. It suggests the need for vigilance in safeguarding concepts and values ever subject to subversion as ideologies drift under the frozen surface of legal texts, of the immutable language that cloaks a mutable law, enabling the mutations to occur invisibly, and to escape examination.

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