Decolonising the Political: Presence, Law, and Obligation

Decolonising the Political: Presence, Law, and Obligation Abstract: In his recent book, Mahmoud Mamdani calls for the decolonization of politics to overcome the categorical and conceptual legacies of the colonial nation state that generate, time and again, cycles of retributive violence. Mamdani’s suggestion of survivor communities, I argue, does not go far enough. The epistemological revolution necessary to reconceptualize legitimate belonging must go beyond the notion surviving a shared history. If what is at issue, is creating an inclusive political order, political community cannot be based on a shared past, but must rather encompass all those who share a present. Moreover, if the distinction between permanent majorities and permanent minorities established by the nation state is continued in the structures created by that order, instruments of redress are required. The political question and the social question are one. To this end, rather than abandoning notions of legal responsibility, an epistemological revolution in the legal notions of responsibility is needed. To liberate the question of who belongs from the logic of prerogative that are the corollary of the nation state form and to radically alter the logic of membership, responsibility must be reconceptualized to take account of our implication in the situation of others. We can conceive of polities not as constituted by a shared past, but as premised on our collective inhabitation of entangled histories and presents. Keywords: Polity, Responsibility, Membership, Nation State, Implicated Subject Decolonising the Political: Presence, Law, and Obligation1 The project is to create more inclusive political communities by attending to layers of exclusion – racial, ethnic, religious – that are the necessary outcome of the nation state form shaped by political modernity. (Mahmoud Mamdani 2020: 339) In his book Neither Settler nor Native, Mahmoud Mamdani raises the question of how we can leave behind the cycles of extreme violence engendered by the nationalist distinctions between majorities and minorities that the nation state relies on (Mamdani 2020). Mamdani calls for an epistemological revolution (2020: 33) and an epistemic change (2020: 345) in thinking about the constitution of political communities. He suggests that thinking of polities as communities of ‘survivors’ can overcome the cycles of retributive violence arising from narrations of majority prerogatives and minority exclusion. Survivors for Mamdani are all those who have survived particular historical events, whether they were perpetrators, victims or bystanders. Indeed, Mamdani’s intention in deploying the concept of survivors is precisely to overcome these distinctions, which, he holds, reaffirm the categorisations of the nation state form and lead into retributive cycles of violence. The proposal to begin anew as communities of survivors is compelling. However, the potentials of radically altering the logic of politics, legitimacy and membership are not exhausted by the notion of survivors – and may even be impeded. The origins of racial, ethnic or religious exclusion and the violence related to it arise not from categories of difference alone, but from the very proprietary logic in relation to territory, rights, hierarchies of belonging, and membership as such, on which the nation state is constituted. The notion of a survivor community thus goes too far and not far enough at the same time. It goes not far enough, since focussing on a shared past provides a new foundational narrative of a shared historical experience. This might lay the groundwork for a new majority and new exclusions. By repeating the operation of identifying the state with one history, and one foundational narrative, namely surviving that specific history, new categories of legitimate privilege are produced. Those who did not survive that very history have a lesser claim to that state. After all: Who is a survivor of what? Which historical events are we survivors of – and which not? Who can define what histories we survive together? This is a question regarding the boundaries of political communities of survivors, and whether they entail the danger of new closures and exclusions. Are we survivors only of the histories that happened on the territory or were propelled by the governments of the states we were fortuitously born into? Would confining our survival to those histories not repeat the errors of the national logic, and reproduce the artificial and largely simplistic boundaries established thereby, once more making the inextricable entanglement of histories invisible? The concept of a survivor community goes too far in that to abandon the classifications that underlie permanent majorities and permanent minorities, also abandons the distinctions between (collective) perpetrators and victims. The problem of criminal law, and international criminal law above all, however, lies not so much in its distinction between perpetrators and victims, but in doing so in a simplistic manner, and one that suffers from a methodological nationalism that does not give justice to the complex production of genocidal violence. Rejecting the retributive logic of criminal law for reproducing the categories of difference underlying discrimination and violence, Mamdani also abandons any attempt to distinguish among different kinds and different scopes of responsibility. This concerns responsibilities for past wrongs, which, in the limited perspective of nationally defined ‘survivors’, cannot take into consideration the transnational production of violence, that is: those who participate in genocidal violence by enabling it through their support from afar. Moreover, it does not speak to any responsibilities to set past wrongs right for the future: It leaves unattended ‘the social question’2, that is: the persistence of destitution resulting from continuous dispossession, to accomplish the political one, and thus leaving unattended the differential positions created by past discrimination. Consequently, Mamdani’s proposal to overcome the past via the notion of ‘survivors’ allows the past to continue to structure the present socially, if not politically. ‘Decolonising the political’ (Mamdani 2020: 23, 34, 327f) can only be achieved, I argue, if we take such epistemic change further than the notion of survivor communities suggests and take up Andreas Wimmer and Nina Glick Schiller’s (2002) call to leave behind all forms of methodological nationalism. This means we need to overcome not only specific culturalist notions of the nation, and not only the always potentially violent national classifications of permanent majorities and permanent minorities. Rather, we also need to leave behind the proprietary idea of the state that underlies this classificatory operation. What characterises the idea of national permanent majorities is the assumption of a proprietary relationship to a territory, a state apparatus, the rights that accrue from membership, and, I would argue, a ‘national’ history. This is no different for nation states defined by race, ethnicity, religion or other such ascribed identities, than for those defined by a foundational moment narratively embodying specific values. These latter nations, too, grant membership as a property (Shachar 2009). This proprietary and possessive relationship between a state and its subjects is rooted in the history of the nation state, and the foundational narratives that legitimate it, in the same way as the distinctions between majorities and minorities that Mamdani so lucidly describes; it is a variation of the same logic. The notion of property active here is precisely that of private property (Redecker 2020; see also Menke 2015), which developed in parallel with the bourgeois nation state. The right to partake in the patrimony of the nation state has shifted during the history of this state form, expanding in many countries to include workers, women and those without means of subsistence via institutions of national solidarity established after lengthy social struggles for such rights. It is precisely the nation-state form that, in the end, succeeded in organising these struggles, which had often begun in an internationalist spirit, entrenching the proprietary logic of legitimate participation, so much so that today parts of the political left succumb to this national logic, decrying cosmopolitan or internationalist positions as elitist (e.g. Streeck 2021). The proposal to think in terms of survivor communities potentially continues this proprietary logic, given that it also relies on a foundational narrative that focuses on a specific history, and on specific participants in this history. It potentially excludes those who are deemed not to have shared that historical experience to the same degree, or who identify with other histories and experiences, because they or their ancestors did not partake in the foundational historical moment. Freeing the question of who belongs from the logic of property and prerogative that are the corollaries of the nation state form needs an epistemological revolution in ideas of rights and obligations; it calls for a conceptualising of membership premised on inhabiting entangled histories and presents together. Taking up the urgent suggestion of Mahmoud Mamdani to overcome the categorical and conceptual legacies of the colonial nation state, my argument in this article is inspired by several distinct experiences, which are, nonetheless, intimately connected. The first is my own socialisation in West Germany, including my socialisation into the specific and often exclusionary remembrance culture that, even with its many wilfully ignorant blind-spots, and its self-centredness, I understand as establishing a responsibility towards the ‘Never Again’ of all fascism and any annihilating violence as the paramount ethical and political norm. In a very basic way, all my scholarly questions are born from this. In the sense of this having been the source of all my political and anthropological questions, the argumentation I attempt here is in many ways akin to what Fazil Moradi in his introduction to this issue refers to as the autobiographical. The second site is my research on the rise of genocidal thinking and genocidal violence (Appadurai 2022) in Hindu-nationalist India, and the struggles of Indian Muslims against their exclusion from the Indian polity. The third site of experience seeks to understand the alternative notions of responsibility and solidarity that are claimed in manifold social struggles, and that practice – in the sense of trying out, or prefiguring – the epistemological revolution in conceiving of membership and mutual obligations. My argument is threefold: First, I argue that, to decolonise the political, an epistemological revolution of notions of membership needs to go beyond foundational narratives, even that of surviving, and to conceive the constitution of polities as a matter of a shared present rather than a shared past. A decolonial notion of membership needs to overcome any foundation for permanent distinctions between insiders and outsiders; it might be a ‘pragmatic’ one that integrates all ‘who are present’ for matters concerned, encompassing a range of participatory rights and obligations. Second, I argue that whilst abandoning the distinction between perpetrators and victims might both be a pragmatic way to move on from colonial racialised notions of difference, and, more importantly, circumvent the simplifications inherent in the notions of “victims” and “perpetrators”, such circumvention is yet another simplification, and one that also abandons the possibility of addressing the manifold presences of the past in the present. Because it leaves unaddressed the structures of inequality produced by earlier privilege and discrimination, by dispossession, displacement, murder, oppression and exclusion, such a stance cannot complete a decolonisation of the political. For an epistemic revolution in concepts of rights, obligations and membership, and to address – and re-dress – the effects of the past in the present, the political question and ‘the social question’, that is: the economic plight and destitution resulting from dispossession need to be thought together. Leaving them unaddressed or postponing their addressal to a later stage will thwart the epistemic change that Mamdani calls for, by reproducing in ‘the social’, that is: the material conditions of life, the erstwhile divisions between proprietary majorities and dispossessed minorities. Distinguishing between polis and oikos conceals their mutual co-constitution. Therefore, any endeavour to decolonise the political needs to address the traces of the (colonial) past in the present in order to undo them, which, in turn, requires thinking the political and the social together. This needs a relational concept of responsibility based not on causation alone, but on capacity for change. To this end, I argue, thirdly, for an epistemological revolution in legal notions of responsibility. I suggest that such an epistemological revolution in law firstly should encompass the notions of culpability and liability rather than abandoning them, retaining the norm-setting elements that processes of criminalisation entail. Secondly, and more importantly, linking both retrospective and prospective responsibility to the – historically constituted differential capacities to effect change, as is suggested by the claims of many social struggles that mobilise law, would overcome the persistent methodological nationalism of legal responsibilities. This linkage would enable us to conceive of obligations founded upon our implication (Rothberg 2019) in each other’s lives. Such an epistemological revolution in law would radically question current notions of property, in material assets as well as membership and rights to care, reconceptualising mutual obligations in terms of ‘presence’. ‘Presence’ in today’s deeply entangled world is a matter of connection (Young 2006; Schiller 2018) and of our implication in the situations of others (Rothberg 2019); it is determined by issues that we are involved in, implicated in, issues that can be very local or stretch across long chains of interdependence. These reach into the past and connect with our present. If polities are organised on the grounds of our factual connections, forms and temporalities of membership will necessarily be manifold, and the state’s role towards such manifold memberships will differ from the proprietary relation between nation states and their subjects. Decolonising the political and overcoming the parameters of the national and its violence of exclusion and annihilation, therefore, needs to turn towards a politics of care based in relations of concern. Who is a survivor of what? The idea of a survivor community that Mahmoud Mamdani proposes as a means to leave behind the enmity between majorities and minorities refers to a shared historical experience. Those who share in a historical experience, though their positions are different, are its collective survivors, who now begin anew on the ruins of the past, together. This perspective has a pragmatic aspect: unlike the antagonistic identities of perpetrators or victims, it prevents the resistance of erstwhile majorities against what they might fear to be a turning of the tables. It makes a new beginning possible without reproducing the political categories of the past, thereby moving beyond the enmity that spurred violence. Beyond this pragmatic aspect, it also makes for membership based not on some culturalist notion of difference, such as shapes national(-ist) narratives of majorities and minorities, but on a shared experience that includes all who “went through it” in whatever way they did so. Taking post-Apartheid South Africa as a model, Mamdani argues for political approaches to the overcoming of violent political orders and opposes them to those employing criminal law. Believing that the latter reproduces and re-instates the order of national majorities, he argues that “by taking a political approach, South Africans reconfigured perpetrators and victims – alongside beneficiaries and bystanders – as something altogether new: survivors. All groups were survivors of Apartheid, with a place at the table after its violence.” (2020: 16–17) The suggestion of a community of survivors beginning anew together and as a political collective undivided by categories of majority or minority is compelling. However, inasmuch as it retains the story of a shared past, the idea of a community of survivors has the potential, rather than overcoming the logic of the nation, to simply begin a new ‘nation’. The ‘new beginning’ retains the linkage between a historical process, a specific territory3 and the subjects that have a claim to that territory and its history.4 That such a connection of history and membership can produce new exclusions is evident in the way that German memory culture is publicly cultivated as a German monopoly of the capacity and skill of remembrance. The remembrance of the holocaust is vital, but to do the work that can only be done if we remember, namely to prevent fascism to arise again, this remembrance must shed the vestiges of the national; it must shed the assumption of ever actually doing enough, succeeding or even excelling in remembrance. What is increasingly becoming evident, however, in the public debate about the remembrance culture of contemporary Germany is how a presumption of a monopoly of remembrance, and the presumption of the ultimate power of definition of what counts as proper remembrance has exclusive and exclusionary aspects (see e.g. Özyürek 2018). Germany has many modalities of excluding those not perceived as German ‘by nature’. For one, the continuing influence of ius sanguinis in determining German citizenship, even though modified today by a right to choose for those born in Germany to migrant parents, reproduces the nationalist logic that assumes ‘a people’ constituted by ‘ancestry’, biological and cultural. Today, the idea of Germany as a ‘Kulturnation’ – a nation with a shared culture – is reproduced, against all public pronouncements that Germany now is an ‘immigration society’ (Einwanderungsland), not by the remnants of the ius sanguinis, but by the foundational identity of (West) Germany5 as a repentant nation. Precisely at the moment when ‘German-ness’ as transmitted by birth or by culture is losing legitimacy and formal institutionalisation, memory culture as the foundational identity is achieving a new role, enabling the continuation of hierarchies of belonging. It might be that memory culture turns into one of the remaining pillars of the Kulturnation, and is so embattled precisely for that. Admittedly, German memory culture refers to a perpetrator identity rather than a survivor identity, but it does struggle to include the victim and to transform itself into a survivor community. This struggle to achieve some form of a survivor identity in Mamdani’s sense, is evident, for example, in the right granted to Jews from Eastern Europe and the former Soviet Union to obtain German citizenship. This right did not pertain to the Roma of Eastern Europe, this being one stark example of how the power to define legitimate membership resides, as before, with the ‘permanent majority’. The ‘perpetrator identity’, struggling to be recognised as survivor identity by inviting the relevant victim community into its fold, unmasks itself as upholding the prerogative of the majority. Furthermore, the power of definition is also asserted in the aggressive denial of any other historical remembrances in German public space: It is the history of the holocaust, which defines Germany’s historical identity, any attempts to raise awareness of other histories of Germany,6 such as the atrocities of German colonialism (Zimmerer 2013; Conrad 2019), and the role that the German perpetrated annihilation of European Jews had in legitimising the Nakba, being delegitimised as “relativizing” the holocaust. The possibility to remember these entangled histories together (Zimmerer 2003; 2011; Rothberg 2009) is denied. It was only the enthusiastic solidarity with the US Black Lives Matter movement, and not the long-standing anti-racist campaigns by German citizens and residents, who experienced racism, that achieved a wider public debate on both the racism within German society, and Germany’s colonial past. However, as if to prevent this new found reflexivity to have any effects, the ‘Documenta scandal’7 of 2022 (following onto the ‘Mbembe scandal’8 in 2020) immediately closed those avenues of public reflection: In these debates, the anti-Semitic imagery present at the Documenta was generalised to disqualify any de-, post- and anti-colonial positions as potentially anti-semitic; anti-Semitism was displaced onto the Global South, relieving Germans from their own persistent antiSemitism9 and blinding them to other forms of racisms. Rather than taking up the shared challenge to examine the presence and continuities of anti-Semitism in today’s world, what happened was that (mostly non-Jewish) Germans, by way of being repentant inheritors of Nazi Germany, turned themselves into the most qualified experts of and stalwarts against antiSemitism – self-righteously presuming the role to teach the rest of the world about it, particularly the global South perceived as always potentially anti-Semitic because of an anticolonial stance that included criticism of Israel. The point is that this state of affairs is so not solely because of the continuation of the nationalist project that the Nazis pursued in the post-war political order, which Mamdani points to; it is also a result of the perpetrator-wanting-to-be-survivor identity, which has acquired and retains an exclusionary mark of belonging. The connection is continued between one specific national history, in the German case: the holocaust, and the biological descendants of those ‘surviving’ that specific history. ‘Surviving’ is biologically bequeathed. This connection founds a proprietary claim on the history of Nazi Germany, which is shared only with specific victim groups. Those who came later and do not have biological ancestry among perpetrators or victims, are suspected, at least potentially, of not having the same capacity to remember and repent. The result of this logic is that those who have not inherited their Germanness from ancestry are assumed to lack the capacity to fully acquire a proper German identity.10 Thus, even when migrants and those Germans born to migrant parents share the political values arising from remembrance and accept the political responsibilities that come with being a citizen of Germany, their belonging is of a secondary kind, precisely because they are not deemed survivors of the defining historical moment, the foundational narrative of the polity. Those who define the foundational narrative define the degrees of ‘authentic’ and legitimate remembrance, and thus of membership. Hannah Arendt once claimed that one always takes on the political responsibilities of the place one lives in, and when moving, assumes the responsibilities of the places one migrates to (Arendt 2003: 147–158). But under Germany’s remembrance culture, migrants are denied this possibility. Even when acquiring citizenship, they are rarely admitted to the community of survivors. And that is the point: survivor identities do not necessarily produce a break with the national logic. They might install a new foundational moment, refocus historical memory from pride onto guilt, or onto liberation and peace, but the exclusive relation between state, territory, history and subjects stays intact: Focussing on a specific history, and specific participants in this history as constituting a polity, they exclude those who might be deemed not to have shared that historical experience. Survivor communities in Mamdani’s sense might thereby develop into something very closely related to ‘a nation’, seeing that nations are most often communities built on an imagined shared past. Any such imagined past and foundational narrative identifies a specific territory with one specific historical experience and its survivors. It therefore has the potential to provide for distinctions between those who are heirs to it and those who are not. Those who did not survive this past, or who are not descendants of that history by ‘birth’ might simply become the new minorities, who will never have the same degree of legitimacy because they (and their parents) are neither perpetrators nor victims, and not even bystanders: they are not survivors. It might be that in order to move beyond the national logic, and to decouple the state from a notion of a nation (Mamdani 2020: 334), even one founded in a ‘shared’ history of violence, the narratives of legitimate belonging need to refer not to a past, but to a shared present. This would not be the narrative of a single community that shares a past, but a narrative of practices of cohabitation and mutual obligations. The past in the present This does not mean that we should forget. Far from it. In fact, to decolonise the political we need to be more thorough in remembering the specific roles people survived in to acknowledge the lasting effects of the past in the present. The notion of survivors that Mamdani suggests rejects the notion of perpetrators along with that of victims, because these, he holds, would reinsert the binaries that justified past violence. The notion of survivors thus strategically ignores differences amongst survivors. It ignores the different positionalities of perpetrators, victims and bystanders within the past, arguing that the political order has to be transformed before ‘the social question’ can be addressed. Insofar as the social question, that is: the social effects of economic deprivation resulting from dispossession and displacement, arises directly from the political order of the past, however, it seems urgent precisely for the political question that we acknowledge the presence of the past in the present, in the political and the social concurrently. Separating the political from the social, as Mamdani advises for pragmatic reasons, overlooks the effects of the political on the social, and the continuous presence of political pasts in the social of the present. It reproduces the skewed distinctions between the public and the private, the political and the social, that the opposition between oikos and polis in Greek political theory once established, as if they were not part of the same order. The political institutions emerging from any transformation that avoided reflecting upon the effects of the past in the present would reproduce that very order, now not in political institutions, but in social positions. Since these shape access to political institutions, the old order would continue. Omitting reflection upon the structures produced in the past, but still effective in the present, would continue the order inaugurated by the colonial nation state. A new order needs reflection upon the different positionalities within a social structure created by erstwhile categories of difference. This is not a matter of distinguishing perpetrators and victims as much as one of reflecting upon privilege and continuing disempowerment. Major forms of racism today are based in those ‘unintended’ everyday reproductions of racist structures. These unthinking everyday reproductions are precisely the result of a lack of reflection on how privilege has been produced by histories of racial exploitation and oppression. Moshtari Hilal and Sinthujan Varatharajah (2021), for example, proposed the term Nazihintergrund (Nazi background) as a means of making visible that those whose grandparents already lived in what is now Germany are not speaking from any less ‘positioned’ ground than those said to have a ‘migration background’ (Migrationshintergrund), the term used to denote descendants of people from ‘the global South’ and the European ‘East’,11 who migrated to Germany since the second world war. The term Nazihintergrund was intended to make explicit the particular antecedents of the majority, in fact, to make explicit that the majority has antecedents, antecedents that are usually named only for ‘minorities’, and as a deviation from the norm. Nazihintergrund thus points to the continuities in the narrative of what it is to be ‘German’ and the economic and cultural continuities of privilege, as amassed in the form of economic, social and cultural capital. The logic of the old political order is continued in both. Thus, to transform political institutions and rid them of the logic of the past, we need to reflect on how the different positions that we are in were – and are continuously – produced by the very history that we survive together. Rather than flattening such differences between survivors, and thereby flattening responsibility both towards past violence and future wellbeing, the differences of how we survived need to be named. Law and the political In order to name those differences, is it necessary to identify the violence of the past as a crime? Or should we eschew such resorts to criminalisation and ‘prioritise the political’, as Mamdani believes? He argues that ‘the call for criminal justice within the parameters of the existing political order leaves that order intact,’ (2020: 17). Furthermore, he holds that criminalisation actually de-politicises the understanding of the past, turning political violence into the monstrous deeds of individuals. However, is this so? Does law necessarily reaffirm the order that gives rise to it? Or can law also institute a new order? Is the Benjaminian distinction between law-making violence and law-upholding violence that clear on the ground,12 that is: is existing law and its executive violence necessarily always only law-upholding or does it have transformative potentials? And is law necessarily de-politicising? Does it always prevent a new political order and novel norms of co-existence from emerging? If what is at issue here is to overcome an unjust political order of the past, and if that order is continued in the structures that were created by that order’s violence, which lasts into the present, then, I argue, we can employ what law exists, and in particular criminal law, to address and re-dress those continuations of past violence. Even though existing law works to uphold the order it is part of, its “performativity” has “world-making, constitutive, institutive effects” (Ertür 2022,3). Criminalisation has, more often than not, served as a tool of domination, with societies criminalising the deeds of the weak rather than the damaging deeds done by the dominant. Many critics have shown, moreover, how criminalisation has been used to fortify and expand specific forms of domination. In particular, the history of capitalist expansion has been one of criminalising those ways of life and practices that cannot be incorporated into processes of accumulation (e.g. Marx 1842; Merry 1998; Mattei and Nader 2008; Wacquant 2012). Again, it is the interdependence of the nation state form and the pervasive logic of private property that is at issue here. What this history of criminalisation shows, beyond how it fortified the liberal economic order and its political order, the bourgeois nation state, is that criminalisation, and criminal law, are deeply political tools and cannot be otherwise. However, this is inherently so, which means that the law is also a political instrument when employed to criminalise what in a political order was considered legitimate, or even legal. When women call for the criminalisation of rape, rape within marriage or sexual harassment, the patriarchal norms that permeate the nation state form are challenged by its very own criminal law. Criminalisation, (as well as de-criminalisation) are political processes and expressions of the normative questions that societies battle over. This is the case when ‘loitering’ is criminalised, or begging (Ramanathan 2006; 2008), as well as when hate speech, sexual harassment and rape (e.g. Baxi 2014) or racist violence (e.g. Bielefeldt/Follmar-Otto 2005; Kok 2008) are criminalised. It is so also with regard to the criminalisation of genocidal violence and its legality and legitimacy (Arendt 2011). When existing law is employed to recognise certain acts and experiences as a matter of public concern and thus of state attention, the “world-making, constitutive, institutive effects” which Ertür identifies (2022, 3) of law transform the exiting order into a different one. The main idea of the survivor community is to leave behind the divisions between perpetrators and victims, which propel people into retributive cycles of violence. If, however, those divisions are more encompassing than the categories that the nation state form employs to justify privilege and exclusion, that is, if they are pervasive in the structural positions created by the violence of the nation state, these divisions can be overcome only if the effects of the past in the present are addressed. In order to make a claim that those structures, and the violence that created them, were and remain unjust, it might be necessary to name them a wrong for which people bear responsibility. First, naming them a wrong is necessary to leave the justifications and naturalisations of past violence behind, the narratives of its necessity that were part of the ideological apparatus of the past. Naming the deeds that created the differences of the past a wrong thus begins a new narrative, a new (epistemological) order. Second, naming them a wrong and, a fortiori, redressing those wrongs in the present, requires that responsibilities for the past be named together with the obligations that these create for the future. In both naming past violence as a wrong, and in redressing the effects of past violence in the present, law, including criminal law, has a role to play: The law is the instrument that establishes what is a crime. The law has also a further role in organising responsibilities – both for the past and for towards a future. When calls for criminal punishment have come from those who feel a lack of protection under existing laws, this can reflect a desire for retribution (Hamber and Wilson 2002) or what Mamdani calls ‘victor’s justice’ (2020: 112, 118). However, it appears that, in many cases, such desires for criminal indictment of perpetrators are not simply about inflicting suffering on those who inflicted such suffering on others. Rather, the desire for a criminal verdict is a desperate call to be recognised as actually suffering from a crime, and not just from unavoidable ‘fate’, or history, or circumstances, or something that one has to tolerate because of some characteristics of one’s own (like being a woman, or a person of colour, etc.). Beyond the realm of justice lies not only misfortune but also personal failure, that is, an interpretation of suffering that sees its causes in one’s own actions rather than in relation to others. To contest the understanding of such issues as matters of personal failure or misfortune needs a public affirmation that they are about acts of commission or omission on the part of others. It is the public verdict that is needed to condemn an act as a crime (Lindt 2020: 69–70) and deny it the legitimacy it is accorded under a genocidal ideology. Nationalist genocidal violence commands a justificatory apparatus, most often pointing to a ‘threat’; it uses this to justify and normalise murderous violence against a purported collective other. Denying this justification and normalisation is the role of criminalising genocidal violence and crimes against humanity. By appealing to criminal law, those persecuted as “other” attempt to name genocidal violence a crime. It is an appeal to deny any justification to specific acts of violence, to deny narratives of necessity, and deny precisely the retributive logic that much genocidal violence is legitimated by (e.g. Eckert 2012; 2001). In that regard, such calls for the criminalisation of genocidal violence are appeals for a new normative order effected through the employment of ‘old’ legal instruments. Without the criminalisation of genocidal violence, whatever its form, and without the attribution of fault, the normative order that normalises such genocidal violence will not be overturned. In this sense, such criminalisation and punishment is thus not merely about retrospective retribution for a deed in the past. When forms of suffering are recognised in law this has a future dimension: It is norm-setting, rather than norm-preserving and protective of the status quo,13 in as much as the publicness of criminal indictments inaugurates an order in which any genocidal violence14 is criminal, also that against those who once were perpetrators. It leaves behind, or tries to overcome, retributive cycles of violence and the logic of revenge. Just that kind of norm-setting was what was debated with regard to the Nuremberg trials and their retroactive criminalisation of some of the acts of Nazi Germany. Mamdani (citing Olick), holds that the Nuremberg trials were remembered the wrong way, not for what they were, which he says was a victor’s justice, or for what actually happened there (2020: 111). And indeed, they were so much less than what I in my German childhood in the 1970s and 80s learned to remember them as. I remembered the Nuremberg trials as a condemnation of National socialism as a political project; as an indictment of nationalism, racism and fascism. Only much later did I learn that it took the student movement of the late 60s, and possibly much more, to establish this ‘mistaken’ and ‘false’ public memory, and with it the ‘Never Again’. So, although they are remembered for something they were not, might this not be the way they need to be remembered? And must not the knowledge and acknowledgement of the failures of the Nuremberg trials, their failure to actually hold accountable many Nazis responsible for unspeakable atrocities, their failure to identify those who made possible the extermination machinery, who profited from forced labour and expropriation, from war and murder, must not that knowledge, rather than leading us to abandon the norms that are falsely remembered to have been enacted in the Nuremberg trials, rather spur us to remedy those deficits in order not to repeat them? Do we not remember the Nuremberg trials for what they could have been rather than what they were, so that maybe we can achieve what they should have achieved?15 Even though this ‘Never Again’ has not prevented other murderous projects; and even though the extremeness of the Holocaust, and the incomparable ideological, political and technical apparatus for annihilation that Nazi Germany established, has sometimes made it impossible to even perceive other such murderous projects as such; and even though the Never Again actually has justified new atrocities in the name of interventions and the Responsibility to Protect, can we do without it? Is it not a norm that, precisely because of its repeated failures needs to be remembered, reaffirmed and acknowledged as a never-ending task that stays with us? Many scholars have pointed to the severe problems with the way international criminal law, which inherited the premises of the Nuremberg trials (e.g. Mamdani 2020: 21), was conceived and how it has been applied. Like Mamdani, they have pointed out how international criminal law dealing with genocidal violence perpetuates the antagonism between victims and perpetrators and simplifies roles that are rarely so simple (e.g. Clarke 2010). It is also evident that criminal law does not do much for prevention. On the contrary, particularly in international criminal law, it has often made ending a conflict and achieving political resolutions more difficult because of the threat of punishment to actors involved (Mamdani 2009). Moreover, international criminal law is unable to take into account the more global structures that enable and spur on crimes against humanity and genocidal violence, and to hold accountable those who profit in this way. Thus, in its current practice, international criminal law has a deep geopolitical bias (Sundar 2004; Clarke 2010) that is built into its conceptualisation of what harms are actually speak-able and justiciable, as well as its estimation of the capacity of (national) courts to adjudicate genocidal violence and crimes against humanity; and, of course, in the signature and ratification of the Rome Statute itself, which is so unevenly distributed.16 It might very well be because of my German socialisation that I am unable to give the criticisms of criminalisation the weight that others grant them. I am a product of the remembrance culture mentioned above, and while I see the problematic aspects of that remembrance culture, namely its exclusionary aspects and its self-righteousness, and I also see the problems inherent in contemporary international criminal law, I nonetheless refuse to think of the contemporary world without ‘Never Again’, including its use as a legal norm. Despite the evidence that the norm is never sufficient to prevent genocidal violence – as no norm will ever suffice, and is necessary precisely for that reason (Möllers 2015). I argue that that the criminalisation of genocidal violence it is not a mere turning of the tables under the same parameters, as Mamdani holds; it does not reaffirm the political order from which violence arose. It institutes a new normative order that criminalises all genocidal violence, including that of any new majority. The ‘Never Again’ of such criminalisation is valid, like all law aspires to be (even when it fails), irrespective of the identity of the perpetrator. It is therefore not merely law-preserving in the Benjaminian sense of what he called ‘mythical’ law, but also law-making, and therefore deeply political. Because it fails again and again, it also needs to be re-established again and again. It is revolutionary in as much as it precisely criminalises the violence arising from nationalist distinctions; it holds the promise of a shared future.17 Decolonising law: for an epistemological revolution of responsibility To overcome the order of the nation state form and the permanent majorities and minorities that it establishes, the attribution of guilt does not suffice. What is needed is the attribution of responsibility (see Arendt 2003; Rothberg 2019: 41–49). Thus, decolonising the political means revolutionising the organisation of retrospective and prospective responsibilities. Responsibility needs to be grounded in an epistemology of causation adequate to the farreaching chains of distributed action in the contemporary world in order to take into view broader processes of enabling the possibility of harm. With regards to prospective responsibilities, this means rejecting the severe methodological nationalism that is inherent in the limitations of both institutions of solidarity that remain confined to the nation state (see e.g. Beckert et al 2004), and the obligations to distant others that exhaust themselves in emergency assistance, due diligence obligations in law and what is called ‘development cooperation’. Neither moral nor political responsibility can do without law. Karl Jaspers (1946) conceptualised political responsibility as the responsibility that one bears as a member of a polity irrespective of one’s own deeds and grounded in one’s responsibility for how one is governed. Moral responsibility for him was personal and individual. Both begin with a consequentialist impetus, but as the debates in moral anthropology have shown moral responsibility can take a virtue ethical orientation. When the virtue, that is: the moral quality of the responsible person, becomes the primary concern of taking on responsibility, the quality of the relationship between the responsible person or collectivity and those affected by the facts of the case is secondary to the effort. This is precisely yet another lesson from Germany’s remembrance culture: its self-centeredness, and often self-righteousness, in which the goal and purpose is the collective conscience rather than the well-being of those who are suffering from the deeds and narratives for which one takes responsibility. The voluntary nature of moral responsibility causes the interdependence of those between whom asymmetrical relations of responsibility exist to disappear from view. This decoupling, in turn, produces a specific relationship that arises between the one who has responsibility and the one who is affected by the circumstance for which the former assumes responsibility, namely, a relationship in which the one ‘gives’ voluntarily, out of ethical self-commitment, while the other becomes a passive recipient without entitlement, who may have to repay the assumption of responsibility by the former through gratitude. For political and moral responsibility to redress the inequalities of capacities to act and change the structures produced by and reproducing injustices, it needs to be institutionalised as binding obligation in law, so that there are entitlements to redress and care. Law, thus, has a role to play in turning moral commitments and political ethics into institutions of obligations. Just as law can uphold the privileges accumulated in historical processes and the categories that preserve the status quo, it can also be an instrument for establishing new structures by organising responsibilities and formulating binding obligations. This, however, needs an epistemological revolution in law and its notions of causation, responsibility and remedy. Such a transformation would mean analysing the interdependence of political violence, criminal violence and ‘structural violence’. As a result, the attributions of legal responsibility could be based on an analysis of how these forms of violence are produced and how power works, power here meaning the capacity to act, and to act otherwise. This would require us to allow for and respond to the multiple and varied responsibilities arising from the entangled histories and presents that shape our coexistence. It would entail the incorporation in law of a relational concept of responsibility. At the centre of such a concept is not the moral agent, but the sociality of the human being or the relationality of human existence (Pina-Cabral 2018). Society is then conceivable as a network of relations of responsibility. These reflect factual connections, both diachronic and synchronic, and therefore differ in their scope in time and space. Iris Marion Young has pointed to the obligations of those involved in the broader chain of events in which harms are produced and questioned the adequacy of liability models that rely on direct relations of cause and effect. She held that such obligations pertain even when they pursue goals and interests within given institutional rules and accepted norms (2006: 114). Reconceiving responsibility as a matter of ‘complex networked associations’, as Hassan et al. (2006: 280) have proposed, and taking into account the the multi-scalar networks of accumulation in which we are connected as dispossessed and dispossessors, as Nina Glick Schiller has shown (e.g. 2018), challenges us to reconsider legal norms of responsibility. These encompass notions of causation, and issues such as the capacity to impact on events, change their course or fail to do so despite capacity. Responsibilities are considered in a more ‘relational’ manner, weighing capacity and intent within these entanglements in a way that reflects the different capabilities of all participants ‘to act otherwise’ (see e.g. Laidlaw 2014). This conceptualisation of legal responsibility takes into account the structures of power within which harms are produced; rather than abandoning limits to individual, corporate or collective legal responsibility, it links responsibility and its limits firmly to capacity, here understood as capacity to act otherwise, and to mitigate suffering (Shklar 1990). Models for this kind of epistemological revolution in law and a relational conception of responsibility can be observed in many of the social struggles that turn to law to achieve justice. Theirs is not a mere submission to some hegemonic notions of crime and legally recognised forms of suffering. Rather these struggles, legal and at the same time profoundly political, try to transform current legal institutions (Santos and Garavito 2006; Eckert et al. 2012). They employ law in order to achieve public recognition of suffering, and thus an affirmation that a norm has been violated. In this they often redefine what suffering can be articulated in law and question the exclusion, e.g. in the Rome statute, of poverty, racism, sexism, imperialism, colonialism and exploitation from questions of legal responsibility. They thus attempt to transform the understanding of norms, and possibly their legal interpretation. They create what Susanne Baer has called ‘legal trouble’ (Baer 1998: 242),18 claiming what is not yet a legal institution, opening up the possibility of calling it19 into being (Eckert 2021). Many of these social struggles reflect more thoroughly on the complex production of harm and violence. In particular, they place more responsibility on those who could be said to bear mediate responsibility: actors whose actions and omissions enable (rather than physically cause) situations of violence (Eckert 2018). They also draw attention to those that benefit from harmful activities, and whose benefits might be considered the ultimate end of the activities that generate harm. By moving actors and activities that enable and benefit from violence to the fore, the attributions of responsibility (often) voiced in mobilisations of law point to the ways in which power works. So rather than either reducing conflicts and mass violence to the notion of a monstrous individual perpetrator, as current formulations of international criminal law are charged to do, or diffusing collective responsibility into the realm of non-binding ethical norms, if we were to foreground the capacity of actors to prevent systems of harm from emerging, or at least to ameliorate them, and to remedy losses and injuries, we would highlight and take seriously the obligations of care and remedy that already exist in law (Veitch 2021, especially 90). This might enable us to address persistent inequalities created by past violence and inaugurate a political order in which the capacities to participate are freed from the legacies of previous discrimination as established in the nation state form. This could mean that, in the end, everyone not only has the opportunity to participate, but also the capacity to bear responsibility and to participate in preventing new systems of harms from emerging. In order to overcome the order of permanent majorities and minorities, equality, like justice, must be political and social. Decolonising citizenship: Towards an epistemological revolution in membership Employing a relational notion of responsibility and obligation of the kind suggested above, we can reconceptualise polities as communities of responsibility that reflect the actual connections within which we exist. This would overcome the proprietary relations that the nation state form has institutionalised in its conceptualisations of membership, rights and obligations. From a relationship of property in rights and exclusive membership, we move towards relationships of factual connections. Those necessarily reach beyond a territory, a jurisdiction or a constituted group, since our existence is entangled in manifold ways with those of others living in other places and different jurisdictions. This accords to an understanding of a polity as a group of people, transcending the household and the family, who share common concerns and who maintain social relationships of a more permanent nature, in that they identify shared problems and try to solve them, be it the irrigation of fields, the (re)distribution of resources, the settlement of conflicts or the disposal of garbage. These are challenges that affect everyone who is ‘present’ and which must be organised if people are to live together. Political communities are thus determined by coexistence, by the simultaneity of the problems that they need to address, albeit in different ways, and which demand relations of mutuality, of rights and obligations. That is why the nation state form is so often considered irreplaceable despite its failures throughout its history to fulfil its promises to ensure such reciprocal obligations. If polities are determined by concrete tasks towards problems that need to be tackled because people live together, then, today, both local neighborhoods and world society must be understood equally as political communities. The scope of our communities of practice and mutuality must correspond to the scope of the problems that we face. There are theoretical propositions regarding how to organize polities in terms of such shared concerns, such as the suggestion by Pierre Dardot and Christian Laval to establish layers of ‘commoning’ councils that are organized either geographically or around shared issues (Dardot and Laval 2019); or James Ferguson’s re-thinking of sharing (Ferguson 2021) that builds on Thomas Widlok’s work on the subject (2017). There are, more importantly, all the social struggles of the present which address precisely this: They struggle for institutions of obligation that do justice to the nature of our current co-existence in its fundamental global interconnectedness. Here, a relational notion of responsibility is put forward that seeks to establish binding rights and obligations not in line with nation-state borders but with respect to ‘connectedness’, be this with regard to labor standards (e.g. De Neve and Prentice 2017), social security (Ferguson 2015) or liability obligations in the event of environmental damage and its consequences (e.g. Kirsch 2001). Although many focus on the specific local fault lines of the capitalist global economy, whether local environmental problems or local effects of ‘accumulation by dispossession’ (Harvey 2004), they are, like many of the movements of the 19th and early 20th centuries that struggled for social and political rights, transnational in their perspective. This is often simply because the particular ‘problems’ they face, are in themselves transnational in their making. They hold accountable actors far removed from the occurrences in question, who are, demonstrated to be deeply implicated in the issues of concern. Multiple attempts to reshape participation rights – such as efforts towards achieving a universal basic income or urban citizenship (Bauböck 2003; Hindess 2004; Hess and Lebuhn 2014; Carta 2015; Arnold et al. 2018) – thus articulate principles of belonging and participation in institutions of solidarity equally grouped around places, issues and interconnectedness (Featherstone 2012; see also Eckert 2020; Glick Schiller 2020). If obligations and responsibilities were organised not primarily around territories and jurisdictions, but rather in relation to the factual relations that connect people, this would lay the grounds for conceptions of membership and participation (McNevin et al 2021) that would thoroughly challenge the nation state idea and the proprietary relationship towards the rights that accrue from exclusive membership. As something processual, a post-national form of membership thus ceases to be an absolute distinction of insiders and outsiders and instead encompasses a spectrum of participation and a spectrum of obligation, the latter determined by capacity. Conclusion If the project is to leave behind the violence born from the nation state’s distinction between legitimate and illegitimate participants in the common weal, a processual and pragmatic notion of membership is needed. The notion of survivors that Mamdani suggests, however, does not go far enough; it fails in two regards: First, it goes too far by abandoning any differentiation of responsibility, thereby side-lining the effects of the past on the present. Yet at the same time, it does not go far enough in overcoming the logic of the nation state form. This is because it bears within it potential new proprietary claims on history, territory and state, and thus also potentially similar exclusions. By contrast, de-colonial polities include all who are involved, so that participatory rights and entitlements to care are not determined by a shared experience in one particular past, but by a shared present. This is not the prerogative of some who lay claim to its foundational narrative, but is inclusive, making different forms of ‘presence’ the foundation of the polity. In fact, presence is defined by being implicated in each other’s lives, by sharing the problems we face and sharing a future. To conceive of a polity not as already constituted by an apparatus of institutions that distinguishes between members and non-members, participants and those denied participation on whatever grounds, but as continuously created by politics (Arendt 1993, 15), enables us to rethink political participation in a manner that overcomes the methodological nationalism inherent in conceptions of polity as a given collectivity and politically bounded, territorially defined polities (Wimmer and Glick Schiller 2002). Foregrounding ‘presence’ and connections in new ideas of membership, and differentiating responsibility in ways that highlight capacity so that the inequalities effected by past violence can be redressed, would constitute a thorough decolonisation of conceptions of political community. Acknowledgements: I thank Helena Eckert, Isidora Randjelović, Kiri Santer and Werner Schiffauer for their insightful comments on earlier versions of this text. Funding: This article builds on longstanding research questions of the author. The research that informed those was made possible by regular salary of the Max Planck Society and the University of Bern. Some ideas here expressed came up in relation to research projects funded by the Swiss National Foundation. ORCID iD Julia Eckert https://orcid.org/0000-0001-6731-5304 References Appadurai A (2022) Modi’s India Has Now Entered Genocidalism, the Most Advanced Stage of Nationalism, The Wire 10 January 2022. Available at: https://thewire.in/politics/narendramodi-india-genocidalism. Arendt H (1993) Was ist Politik: Fragmente aus dem Nachlass. München: Pieper. Arendt H (2003) Responsibility and Judgement. New York: Schocken Books. Arendt, H (2011) Eichmann in Jerusalem; ein Bericht von der Banalität des Bösen. München: Pieper. 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Zimmerer, J (2003) Holocaust und Kolonialismus. Beitrag zu einer Archäologie des genozidalen Gedankens. Zeitschrift für Geschichtswissenschaft 51: 1098–1119 Zimmerer, J (2011) Von Windhuk nach Auschwitz? Beiträge zum Verhältnis von Kolonialismus und Holocaust. Münster: Lit Verlag. Zimmerer, J (2013) Kolonialismus und kollektive Identität: Erinnerungsorte der deutschen Kolonialgeschichte. In: J Zimmerer (ed) Kein Platz an der Sonne. Erinnerungsorte der deutschen Kolonialgeschichte. Frankfurt a.M.: Campus: 9–37 1 Mamdani employs the original meaning of the term of ‘the social question’ as the destruction of livelihoods in the context of capitalist accumulation and dispossession. First named as such in France in the mid 19th century to address widespread destitution, the decline of small artisan workshops and peasant agriculture, a housing crisis and a rise of petty crime, the term was taken over into German to enter into the programmatic writings that accompanied the 1848 revolutions and subsequently the party programmes of the early socialist and social democratic parties (such as the SDAP of August Bebel and Karl Liebknecht). The social question thus was always an economic one. 2 I understand ‘territory’ not as a ‘place’ but as a jurisdiction, that is: an already constituted political unit.4 South Africans might have left behind ‘race’ as a denominator of national identity, as Mamdani claims, but this community of survivors does not leave behind their particular stakes in Apartheid history; they retain their specific relation to territory and state and the prerogative that accrues from being a ‘survivor’ of that history. Within the new South Africa, majorities and minorities might now be political; but there are still those who do not belong because they did not share in “national” history: the migrants. 5 The foundational narrative differed between West and East Germany. The (Western) Federal Republic of Germany conceived its Basic Law on the assumption that Germany had not perished as a subject of state and international law, and saw itself as inheritor of the previous Germany, and, therefore, from the 1970s on, as the inheritor of a repentant perpetrator identity. It also accepted the obligations arising towards the victims of Nazi Germany, even if it fulfilled them in a haphazard and in many cases extremely tardy and reluctant manner. The German Democratic Republic (East Germany) claimed to have broken with the supposed German special path, its ‘Sonderweg’, stressing its inheritance of the legacy of resistance against Nazi Germany. The GDR consequently rejected any obligations resulting from Nazi crimes. Since re-unification in 1990 entailed the dissolution of the GDR both formally and politically and the accession (Beitritt) of its people and territory to the Federal Republic, the latter’s remembrance culture came to determine the identity politics of the united Germany. 6 Recollections of any other histories of Germany’s present citizenry are not part of public memory. 7 The international contemporary arts exhibition Documenta of 2022 was curated by the Indonesian arts collective Ruangrupa. Charges of anti-semitism were raised early on, in particularly in relation to the absence of Israeli artists, and the presence of artists from the global South with an explicit critical position towards Israel in their art. Shortly before its opening, a large banner by the collective Taring Padi was presented, which contained classical anti-semitic imagery. The pictures also contained other racist stereotypes it seemed to me, all apparently justified by an anti-capitalist posture. While Tarin Padi claimed that the imagery identified as antiSemitic had a different meaning in Indonesia, the banner was taken down. Subsequently, charges of antiSemitism were leveled against other exhibits, some of them historical documents, such as PLO propaganda films from the 1970s and 80s. The debate about contemporary anti-Semitism, its presence in art, its traces in some forms of criticism of finance capitalism, and its complicated relation to critiques of the state of Israel however never took place. Rather than initiating a conversation about global anti-Semitism, such a conversation was impeded by almost all involved, by the defensive reaction of Ruangrupa, as well as by the German public interpretation of the IHRA definition of antiSemitism that renders almost any criticism of Israel anti-Semitic. 8 In 2020, Achille Mbembe was disinvited from giving the keynote lecture at the Ruhrtriennale, a German arts event, for supporting the BDS and relativizing the Holocaust by mentioning it in the same sentence as South African Apartheid, and questioning the right of the state of Israel to exist. Mbembe rejected these charges, and was defended by many colleagues, also many Jewish ones. 9 10 11 12 There has been a rise in anti-Semitic crimes in Germany in recent years. While there is an increasing feeling of insecurity amongst some Jewish citizens in relation to the “import” of Israel related anti-Semitism amongst Germans with an Arabic background and recent Arabic migrants, the vast majority of anti-Semitic crimes, 84,31 % in 2021, are committed by right wing and Neo-Nazi perpetrators of “German ancestry”. See BKA 2022, 10. This is irrespective of the fact that at least the 20 percent of German citizens who regularly vote for right-wing extremist parties in no way fulfil that requirement. These have inherited belonging by birth. The term is not used for descendants of migrants from Northern Europe or North America. ‘Migration background’ was initially meant to replace the term ‘Ausländer’ (foreigner), which was used for the same group of people, i.e. not only citizens of foreign states, but also second and third generation descendants of migrants from the South or the East, irrespective of whether they held German citizenship or other residence rights. It also has a class dimension, usually referring to alleged ‘deficits’ in cultural capital, i.e. deficits specifically in German cultural capital. Walter Benjamin’s distinction between law-upholding violence and law-setting violence in his early “Critique of violence” (2021) postulated the necessity of the violence of the proletarian general strike to eradicate the old and bring about a new order. His critique of violence held a messianic hope for the end of all violence when a new historical age was founded by breaking of the cycle of law-preserving and law-setting violence. Law, he argued, perpetuated violence; and only the pure, immediate violence, that he calls ‘divine’, of the proletarian general strike would end legal violence without bringing forth new legal relations. Benjamin’s text has often been the reference for critiques and criticisms of existing law(s), or law altogether, to argue for a similarly fundamental position against the possibility of legal change in law, like Benjamin who for some time set his messianic hopes in the proletarian general strike, renouncing any law. Başak Ertür calls this the performativity of law (Ertür 2023). 16 However, the term “genocide” itself carries the idea of the gens, and, in criminalising this particular motivation of violence above all others, that is: the attempt to annihilate a gens, ‘a people’, the term itself in part reproduces the logic that it seeks to criminalise. It potentially foregoes its transformative potential to overcome the national logic. In her reading of Eichmann in Jerusalem, Ertür (2023), building on Bilsky 2004, identifies Arendt’s infuriation with Ben Gurion’s agenda in the Eichmann trial that she saw as too parochial. Arendt, Ertür holds, saw the trial as the possibility to bring forth humanity as a subject of law and criticised the trial precisely for abrogating that possibility by making the crime of killing an entire group of people of one ascriptive identity one against that group alone, rather than a crime against humanity (and its order of diversity) as such. The Rome statute defining the four crimes that the International Criminal Court is charged to deal with, has been ratified by 123 countries. Several countries are members but have not ratified the statute. The US, Russia, Sudan and Israel have withdrawn their membership. China and India amongst others have not signed the statute. (See Sundar 2004; Clarke 2010) 17 I thank Isidora Randjelovic for this formulation. 18 Susanne Baer proposes that: ‘Legal trouble can be caused by judges who make a dissenting judgment in the lowest courts […]. Legal trouble can be triggered by lawyers who simply claim what does not yet exist in the traditional, usually dominant and discriminatory discourse. Or legal trouble can be created within the framework of a legal policy in which, last but not least, draft laws are presented that oppose the dominant discourses by taking dissident positions.’ (1989: 242, my translation). 19 See the arguments of Maksymilian del Mar on how legal imagination in legal fictions and other forms of legal reasoning provide new possibilities of interpretation “hinting at the possibility, perhaps even desirability […], of introducing, more explicitly, a new rule in the future.” Mar 2017: 51.