Mika Andersson
Human Rights Spring Semester 2010 Supervisor: Mikael Spång
other things, in a fusion between law and behavioural sciences. In law concerning human rights there is a figure who is referred to as the inhumane human, this figure is dehumanized through the laws and institutions claiming to protect the human value as such. The fact also remain that persons who were persecuted for these acts during the Nuremberg Trials have come to represent the mass-murdered that never killed, as the defendants was mainly administers. The legal paradox were the sovereign perform the crime whilst judging someone for it could be said to have its foundation in the paradox of sovereignty and the state of exception.
Chapter 1_________________________________________________________________1
1.1 Introduction 1
1.2 Aim and Research Questions 1
1.3 Research Questions 1
1.4 Theory, Method and Material 1
1.5 Chapter Outline 2
Chapter 2_________________________________________________________________3
2.1 Chapter Outline 3
2.2 The Origin of the Inhumane 3
2.2.1 The Role of Psychiatry in Law 3
2.2.2 The Moral Monster 5
2.2.3 The Transition from the Monster to the Abnormal (l'anormal) 7
2.3 The Nuremberg Trials 9
2.3.1 Indictment: Count One – Common Plan or Conspiracy, Violations
under Article 6 (a) of the Charter 9
2.3.2 Indictment: Count Two – Crimes Against Peace, Violations under
Article 6 (b) of the Charter 10
2.3.3 Indictment: Count Three – War Crimes, Violations under Article
6 (b) of the Charter 10
2.3.4 Indictment: Count Four – Crimes Against Humanity, Violations
under Article 6 (c) of the Charter 12
2.3.5 Judgements 12
2.4 Discussion 18
Chapter 3_________________________________________________________________20
3.1 Chapter Outline 20
Chapter 4_________________________________________________________________26
4.1 Chapter Outline 26
4.2 The Paradox of Sovereignty 26
4.2.1 The State of Exception 26
4.2.2 The Structure of Law 28
4.2.3 Bia and Dike 30
4.2.4 The Ban 31
4.3 Present Concerns 32
4.3.1 Biopolitics and its Relation to the Bare Life 32
4.3.2 Human Rights and Biopolitic 33
4.3.3 The Configuration of Life 34
4.4 Discussion 35
Chapter 5_________________________________________________________________37
5.1 Conclusion 37
Chapter 1 1.1 Introduction
During the latest year, I have encountered some legal phenomenon’s that I have come to develop an interest for. This concern especially the fact that some infringements or violations towards human rights are defined as inhumane, resulting in the creation of a character or individual that is could be referred to as the inhumane human. Crimes that cause the perpetrator to turn into the inhumane human are all related to some form of dehumanization, and paradoxically, dehumanization is what the perpetrator is literally subjected to by being referred to as inhumane.
1.2 Aim and Research Problem
The aim of the thesis is to examine this figure of the inhumane human as well as the paradoxical legal construction through which it is created.
1.3 Research Questions
I have divided the thesis into two main sections, the first concerns itself with the examination of the legal figure of the inhumane human. In particular, I aim to explain the characteristics of this figure as well as its constitutive origin. Secondly, I examine the legal paradox that I found, with a focus on eventual causes and whether there could be said to be a structural background behind it.
1.4 Theory, Method and Material
Concerning the inhumane human, I have used the indictment from the Nuremberg Trials in order to pin-point its characteristics, and I have used the judgments to examine how this character is
presented. As for background, I have used Michel Foucault's “Abnormal”, which consist mainly of a presentation of the legal monster and the role of psychiatry in law. In order to understand the legal paradox as well as some aspects of the inhumane human, I use Hannah Arendt's “the Human
Condition” and a text by Michel Foucault called “the Political technology of Individuals” as I consider them to explain the foundation of biopolitic in a good way, despite the fact that Arendt never uses the term of concept biopolitic as Foucault does. Their concepts, that of Arendt's mass-societies and Foucault's biopolitic has both the focus on what being human means in the modern society. I have chosen these theories as I consider the theoretical aspects of it to offer an interesting angle to the phenomenon, and opening up for an even better discussion. Lastly, I use a book called
“Homo Sacer” by Giorgio Agamben in the last chapter that explain foremost the structural causes of the legal paradoxes, but I will also have a section where this logic is put in relation with biopolitic, national socialism as well as totalitarianism.
1.5 Chapter outline.
In the second chapter I will examine the figure of the inhumane human. I will begin with presenting Foucault's “Abnormal” before moving on to the indictment and the judgements of the Nuremberg Trials.
Chapter three consist of an introduction to the ideas behind biopolitic by presenting some work of Arendt and Foucault, and it is followed by a discussion on how these theories can be put in relation to the constitution of the inhumane human.
Chapter four focus mainly in the legal paradoxes, and the Nuremberg Trials are put in relation to the theories of Agamben. The second part of the chapter has a focus on the biopolitical
background of totalitarianism as well as national socialism. Conclusions are made in chapter five.
Chapter 2
2.1 Chapter Outline
During the following chapter, I will make my best of trying to identify and present the inhumane human. I will begin with presenting the role of psychiatry as such in law, try to draw out its functions and describe how psychiatry came to important in law, and concerning especially, the relation between law and truth. I will have a main focus on the character of the legal monster, its development from the enlightenments and forwards, its transformation to the abnormal and the consequences of this. During this section I will use Michel Foucault's work “the Abnormal”.
After this, I will present the Nuremberg trials. I will focus on the legal descriptions of the inhumane human as defined in the indictment and specifically concerning the acts that such a figure indulge in. Afterwards I will attempt to try to find the original causes of these acts given by the Tribunal in the judgements, and thereby study whether Foucault's ideas on the role of behavioural sciences in the legal institution could be said to be true in this case.
2.2 The Origin of the Inhumane Human 2.2.1 The Role of Psychiatry in Law
One aspect Foucault brings up in the very beginning of Abnormal is that the relationship between truth and justice is a fundamental theme for Western philosophy and consequently, institutions have been appointed to govern the practices of justice through truth (Foucault, 2003: 11), resulting in the regime of universal truth and penal justice (Foucault, 2003: 8).
Expert psychiatric opinion, and psychiatry, have been given the status of truth as it is considered to be a science, and in the notion of being a science, a discourse of truth, it has been given the very function to determine life and death in penal cases (Foucault, 2003: 6). Foucault shows that in practice, using relatively present penal cases, these expert opinions have allowed one to judge, not for acts, but for the general conduct of a person; conduct that there are no actual laws against. Quotes from the penal cases read that the defendant have a “poorly structured personality”,
“poor grasp of reality” and suffers from “psychological immaturity” (Foucault, 2003: 16).
Thereby, the judgement constitutes a phsychologico-ethical double offence, where a person is convicted not only for an act, but for his or hers behaviour in general (Foucault, 2003: 16).
expert opinion shows that the individual resembles his crime before he has even committed it (Foucault, 2003: 19). Meaning that the individual comes to represent his criminality, it merges into his very nature, an illness that is not an illness since it is moral fault (Foucault, 2003: 20)
fundamentally consisting of bad desires (Foucault 2003: 21). The role of the expert have become to answer the relevant questions of whether the individual is dangerous and weather he or she could be cured. This role opens for a new field of expert opinion and more importantly the power and the development of various techniques of normalization (Foucault, 2003: 25).
In determining culpability, the question of eventual madness of the person performing the crime, it must be examined, “when pathology comes in, criminality must go out” (Foucault, 2003: 32). However, a consequence of embedding criminality into conduct, is that it replaces the old principle of either prison or hospital with what Foucault calls the principle of homogeneity of social response, meaning the practice of a protective continuum.
At this point the judicial institution have come to determine the legality not only of an act, but of the general behaviour of a person, and it also concerns itself with all possible acts that this person might perform as a result of his or hers conduct, and whether the society have to be protected from it; the social response (Foucault, 2003: 33). By doing this we come to exclude a large spectrum of individuals from the social body; the mad, criminals, deviants, children, the poor. The mechanisms of power exercised over these individuals are mechanisms of exclusion, exile, rejection,
disqualification, “an arsenal of negative concepts” (Foucault, 2003: 44).
Foucault compares these mechanisms of exclusion with the exclusion of lepers in the Middle Ages as persons who had been declared leprous were given a funeral ceremony and was declared dead (Foucault, 2003: 43). More interesting, however, in relation to the various techniques presently used to sanction different forms of conduct, is the inclusion of the plague victims (Foucault, 2003: 44).
The quarantine measures taken in the cities where the plague broke out were extensive; the territory was closed, districts was divided into quarters and in each district someone was appointed to be in charge and given supplementary power. Further, inspections were made twice a day in each house, everyone was registered by name (Foucault, 2003: 45) and every encountered case of illness was a call for intervention (Foucault, 2003: 46).
Foucault describes this situation as the political dream, a dream in the sense that the plague represented a marvellous moment when political power, in terms of spatial partitioning and
communities and forbidden contacts can impossibly occur, “the plague also brings the political
dream of an exhaustive, unobstructed power that is completely transparent to its object and
exercised to the full” (Foucault, 2003: 47). The public fear caused an enormous call for intervention
by the state, a situation when control and authority is invited by the population rather then forced on them by an authoritative rule. It even reaches the extreme point where authority and control is not only simply invited, it is requested and desperately urged for; totalitarianism becomes the duty of the state.
Foucault also describes how the various techniques of intervention are developed and refined during the enlightenment (Foucault, 2003: 49). Linked to these techniques of intervention
normalization is developed in terms of a concept in itself, that is in defining what is normal and pathological. The enlightenment is also the time when normalization as a process and normative project occurs which essentially leads to new concepts of power (Foucault, 2003: 50). There is a movement from power as having the essential function of prohibiting, preventing and isolating, to a kind of power that rather allows for circulation, change and multiple combination of elements (Foucault, 2003: 51). According to Foucault, the model of power as being an instance of repression at a superstructure level is entirely outdated and irrelevant, he consider them practically to have died along with the administrative monarchies, cast societies and feudal societies (Foucault, 2003: 51). The rising techniques of power are the techniques of normalization, which do not seem to be repressive but productive, as repression only figures as a secondary effect of normalization (Foucault, 2003: 52).
2.2.2 The Moral Monster
The moral monster, or the monstrous individual, represents the criminal in classical law up until the end of the nineteenth/beginning of the twentieth centuries as monstrosity per se is systematically considered to be the factor behind every crime (Foucault, 2003: 81).
The logic of crime consisted mainly of the principle that an act was criminal insofar that it consisted of some form of attack against the sovereign and was thereby an attack on both his strength and his physical body. Consequently, the sovereign must confront the criminal in order to recreate the power lost in the crime committed which takes place through the ritual deployment of the strength of the sovereign as manifested on scaffold; it comes to represent a ceremonial reversal of the crime (Foucault, 2003: 82). At this point, Foucault is also describing a phenomenon that seems familiar to the principle of proportionality. The excess of the public punishment and torture
of the criminal had to respond to the excess of the crime and in some degree also the sovereigns triumph over it, that is “When a crime that reached a certain point of intensity was considered
atrocious, and the atrociousness of the penalty had to respond to the atrocious crime” (Foucault,
2003: 83). In a sense one can say that the legal sanction and the duty of the sovereign, have become to reproduce the crime in order to pertain public order. It seems to me almost perverse, how the crime is carefully studied, examined and evaluated only to be reproduced by the sovereign in a both exhibitionist and sadistic manner in the form of public torture, it is perverse that such a logic can ever be considered duty of state and that the sovereign thereby legitimately monopolizes the right to commit criminal acts.
The logical economy of the mechanisms of power reads that it produce and analyse to enable effects and increase power, and these techniques were, as previously mentioned, refined during the eighteenth century (Foucault, 2003: 87). This is a point where power is integrated into a process of production, namely, the creation of the police. Thereby, crime and punishment becomes intimately linked as the purpose of the police is surveillance; that no one shall be able to commit a crime and avoid punishment. Moreover, it comes to punish as much as it considers necessary and the principle of proportionality is introduced in law (Foucault, 2003: 88).
In order to determine what is proportional in relation to the crime, the old principle of atrocity is replaced by an interest motivative component, “Judges and criminal law theorists call this unit of
measurement of the technology of punitive power “interest,” or the crime's motive, the element that is the crime's raison d'etre, the greatest frequency” (Foucault, 2003: 89). This is a stage of
development when crime receives a nature, it becomes the interest that violates the interest of everyone else and that exposes itself for danger by risking punishment (Foucault, 2003: 90). For the first time we see the appearance of the pathological nature of criminality, a medicalization of
criminals, and within which a new economy of power formulates and develops new theory of punishment and criminality (Foucault, 2003: 91).
Thereby, crime is pathologized on the basis of the new economy of power and the first moral monster to appear in history is the political monster (Foucault, 2003: 92). However, before moving on to describing these political monster, one specific characteristic of the criminal has to be
clarified. A criminal is any person who, in various ways, breaks the social pact as a consequence of his or hers egoistic interest, the criminal is a temporary despot of the moment (Foucault, 2003: 94). The first juridical monster to be identified in the new economy of punitive power is a person who breaks the fundamental social pact; king Louis XVI from whom all human monsters are
descendants.
During the trial it was argued that king Louis XVI could not be sentenced according to the penalty for traitors as law only apply on within the context of the social body, and the king, obviously, is not part of the social pact. No law of social body can be attached to him, he
represented the absolute enemy of the social body as such, and must therefore be crushed as one crushes an enemy or monster (Foucault, 2003: 95).
During this period several publications on the crimes and monstrosity of the royal genealogy was published, where the kings and queens were described to be nothing but wild beasts, wolves and tigers of mankind and according to Foucault, this crystallizes around Marie-Antoinette in particular and there are several reasons for this.
First of all she is a foreign, and thereby not part of the social body, not part of the land over which she reigns. She is described to be a beast, Prudhomme has written “once she has seen …
blood, cannot get enough of it”, and she is thereby a cannibalistic monster, greedy for the blood of
the people (Foucault, 2003: 97). Marie-Antoinette was also guilty of both incest and homosexuality; two major sexual transgressions. There are consequently no doubt of her monstrosity as she is guilty of being both cannibalistic and incestuous, and by performing these behaviours she breaks the social compact (Foucault, 2003: 98).
There is an other monster of this time, which is not the one that reigns but the “revolutionary
people who are the mirror image of bloodthirsty monarch” (Foucault, 2003: 98), of which an
example is the September massacres. It consisted of both debauchery and cannibalism brought to an extreme point; women where raped before being murdered and eaten, there are stories of an incident where a group of priests were burnt alive for refusing to eat human flesh and of persons being forced to drink human blood in order to save friends and family from being murdered. Foucault describes the September massacres as rising out of a popular demand for justice, a justice that was different from the institutional one in the sense of being more violent, fair, speedy and direct.
Consequently, both figures of the monster, the incestuous king and the cannibalistic people seems to appear in the exercise of punitive power and law (Foucault. 2003: 99) and they still represent the two subjects of forbidden consumption in ethnology and psychoanalysis (Foucault, 2003: 104). 2.2.3 The Transition from Monster to the Abnormal (l'anormal)
As previously discussed, crime have been given a nature of monstrosity, and the criminal, in the notion of being merged together with his crime by the nature of his conduct, is portrayed as a
monster, a person with an unnatural nature (Foucault, 2003: 110). It has also been put forward how the forms of punishment have developed into an evaluative system where the sanction is put in relation with the interest motivative component of the crime (Foucault, 2003: 89). However, there is an other kind of crime that will become a juridical and medical concern, that is, the crime with no interest. These kind of crimes did produce series of problems for the criminal psychiatry; as the acts with no interest does not have a nature and therefore it questions the validity of expert psychiatric opinion. In order to pertain itself and its status of science and truth “psychiatry seek to make the
absence of motive, the absence of interest, function as the cornerstone for intervention” (Foucault,
2003: 113).
It questions psychiatry as it had been the rationality of the crime that made it punishable (Foucault, 2003: 114) and the role of psychiatry had been to determine how and why a person committed an act, a degree of understanding through analysis was needed to determine weather it was punishable and which sanction that was proportionate (Foucault, 2003: 116).
Since crimes without reason cannot be sanctioned on the basis of the interest motivative component the institutionalized psychiatry came to specialize on the branch of public hygiene and in particular social protection (Foucault, 2003: 118). From this perspective of general prevention, the act does not have to be understood in order to motivate a sanction of some form, and what also occurs is a codification of madness as a social danger and an illness (Foucault, 2003: 119). Parallel to this new development and purpose of psychiatry, the term “madness” is redefined from being a state of delirium solely to include behaviours as intractability, resistance, disobedience, insurrection or abuse of power. In other terms, madness comes to include all behaviours that interfere with the order of the state, its hygiene and security (Foucault, 2003: 120). Illness is therefore not associated with madness or delusion anymore, illness comes to be defined by the symptomatological value of conduct (Foucault, 2003: 159). Foucault argues that psychiatry as a discourse undergoes a
medicalization as it does no longer need madness to function, it comes concerns all human behaviour (Foucault, 2003: 160). It leads to the point where all kinds of behaviours, “any kind of
disorder, indicipline, agitation, disobedience, recalcitrance, lack of affection, and so forth can now be psychiatrized” (Foucault, 2003: 161). This is the technology of abnormality; by using psychiatric
analytical tools, under which normality is essentially centred around the preservation of order, each and every individual can be divided into normal or pathological. The great monster have thereby been replaced by a spectrum of abnormalities, all calling for state intervention (Foucault, 2003: 163).
2.3 The Nuremberg Trials
2.3.1 Indictment: Count One – Common Plan or Conspiracy, Violations under Article 6 (a) of the Charter
Those individuals that were charged during the Nüremberg process was held individually
responsible for their own acts as well as all acts committed by their subordinates aiming towards the execution of such a plan or conspiracy.
The crimes concerned under count one regards the conspiracy of war crimes and what is defined as ruthless wars against countries and populations. They are accused for having
implemented and created systematic means to commit crimes against humanity, and for having caused “devastation not justified by military necessity”. These are more specifically defined as
“murder, extermination, enslavement, deportation and other inhumane acts” and also concern
having systematically ignored the domestic laws of occupied countries (Indictment, Para. III). The Tribunal defines the Nazi Party as the central core of the common plan and conspiracy (Indictment, Para. IV (A)) and that the objectives was to deliberately planning illegal wars by overthrowing the regulations set in the Treaty of Versailles, to regain all territory lost during the first world war and also establish a lebensraum (Indictment, Para. IV (B)). In order to carry this out, the common plan included various doctrinal techniques, amongst others to give the “German blood” a status of superiority, implement rule according to the fuerherprinzip, stating that war is a noble and necessary activity, and further “to direct and supervise the activities of all individuals within the
State, and to destroy all opponents” (Indictment, Para. IV (C)). They also stand accused for having
implemented several steps in order to reach totalitarian control, amongst others control of the state machinery, suspension of fundamental freedoms such as the freedom of speech and the freedom of the press, establish itself as a para-governmental organization, the extermination of all resistance, consequent usage of terror against opposition through a widespread use of protective custody, systematic imprisonment without trial and crimes against humanity defined as “persecution,
degradation, despoilment, enslavement, torture”, and granting themselves the privilege to operate
without the restraints of law and that “the program of action against the Jews included
disfranchisement, stigmatization, denial of civil rights, subjecting their persons and property to violence, deportation, enslavement, enforced labor, starvation, murder, and mass extermination”
(Indictment, Para IV (D)). Under this section the Tribunal also include the planning behind the systematic gaining of total economic control (Indictment, Para IV (E)), the secret rearmament and
extensive building of a military air force, planning aggressive wars and invasions in violations of international law and treaties as well as the collaboration with Italy and Japan (Indictment, Para. IV (F)). They also stand accused for developing the common plan or conspiracy of planning the execution of war crimes and crimes against humanity in the terms of waging war “in ruthless and
complete disregard and violation of the laws and customs of war” and performing these in violation
of what is referred to as the “laws of humanity” (Indictment, Para. IV (G)).
2.3.2 Indictment: Count Two – Crimes Against Peace, Violations under the Article 6 (b) of the Charter
All defendants stand accused for having participated in the planning, preparing and the execution of aggressive wars in violation with international treaties (Indictment, Para V). It concerns the wars against following countries; Poland, the United Kingdom, France, Denmark, Norway, Belgium, Netherlands, Luxembourg, Yugoslavia, Greece, the U.S.S.R and the United States of America (Indictment, Para. VI (A)). The defendants are held individually responsible for these acts (Indictment, Para. VII).
2.3.3 Indictment: Count Three – War Crimes, Violations under Article 6 (b) of the Charter The Tribunal hold the defendants responsible, in the notion of having participated as leaders, organizers, investigators and accomplices, for the practises of what is referred to as “total war”, which is defined as using military methods that are in direct violation with the laws and customs of war and it is stated that “these methods and crimes constituted violations […] from the criminal law
of all civilized nations” (Indictment, Para VIII).
All acts under the following section are clearly stated as inhumane behaviour (Indictment, Para. VIII (B)) and I will therefore, in order to reproduce the characteristics of the face of inhumanity as accurate as possible, use several quotations.
It concerns the systematic usage of terror in form of murder, torture, ill-treatment and
imprisonment without trial of civilian populations of occupied territory as well as on the high seas.
“The murders and ill-treatment were carried out by diverse means, including shooting, hanging, gassing, starvation, gross over-crowding, systematic under-nutrition, systematic imposition of labour tasks beyond strength of those ordered to carry them out, inadequate provision of surgical and medical services, kickings, beatings, brutality and torture of all kinds, including the use of hot irons and pulling out of fingernails and the performance of experiments by means of operations and
otherwise on living human subjects” (Indictment, Para. VIII (A)).
The extensive use of protective arrests without trial and imprisonment under unhealthy and inhumane conditions are stated to violate Article 46 of the Hague Regulations of 1907 concerning the laws and customs of war. As an example of what these conditions consisted of in practical reality they are explained as the “pseudo-scientific experiments”, the vast use of anonymous massacres and the conditions on several French prisons is described in the following way;
“These arrests were followed by brutal treatment and tortures carried out by the most diversive methods, such as immersion in icy water, asphyxiation, torture of the limbs, and the use of instruments of torture, such as the iron helmet and electric current” (Indictment, Para. VIII (A)).
Practices of murder and ill-treatment seem to have been accelerated in degree on the Eastern front, as an example it is explained how mass shootings of prisoners in the Ganov camp took place under the accompaniment of music from an orchestra consisting of other internees, approximately 200 000 persons was murdered in this camp (Indictment, Para. VIII (A) 2 (a)). Further, after the Germans were expelled from the Stalingrad region, soldiers encountered the following;
“One hundred and thirty-nine women had their arms painfully bent backwards and held by wires. From some their breasts had been cut off and their ears, fingers, and toes had been amputated. The bodies bore marks of burns. On the bodies of the men the five-pointed star was burned with an iron or cut with a knife. Some were disembowelled.” (Indictment, Para. VIII (A) 2 (b)).
The defendants also stand accused for the deportation of slave labour, bearing the response over the fact that the conditions and overcrowding was so bad that many died during the transports, and bearing the response for systematic murder and ill-treatment of prisoners of war “forcing them to
labour in inhumane conditions, by torturing them and subjecting them to inhuman indignities and by killing them” (Indictment, Para. VIII (B)).
They are also accused for the plunder of public and private property (Indictment, Para. VIII (E)) which caused starvation (Indictment, Para. VIII (E) 1) the seizure of raw material and industrial machinery (Indictment, Para. VIII (E) 2) as well as the destruction of industrial cities, cultural monuments and scientific institutions (Indictment, Para. VIII (E) 8), the extensive use of collective punishment (Indictment, Para. VIII (F)) and that the vast destruction of cities, town and villages could not be justified in terms of military necessity and therefore violated Articles 46 and 50 of the Hague Regulations of 1907 (Indictment, Para. VIII (G)), the conscription of civilian labour forced to work in violation of Articles 46 and 52 of the Hague Regulations of 1907 (Indictment, Para. VIII (H) and lastly, held responsible for forcing civilians to swear allegiance to a hostile power
(Indictment, Para. VIII (I)).
2.3.4 Indictment: Count Four – Crimes Against Humanity, Violations under Article 6 (c) of the Charter
The defendants are accused for bearing the responsibility for formulating and executing crimes against humanity as formulated in Article 6 (c) of the Charter (Indictment, Para. X), this include
“Murder, extermination, enslavement, deportation, and other inhumane acts committed against civilian populations before and during the war”, “crush all tendencies and elements which were considered “undesirable”” and that “they imprisoned such persons without judicial process, holding them in “protective custody” and concentration camps, and subjected them to torture and murder” (Indictment, Para. X (A)). Lastly, they stand accused for having performed these acts on
political, racial and religious grounds in connection with the common plan that is mentioned under Count One (Indictment, Para. X (B)).
2.3.5 Judgements
Goering was indicted and found guilty under all four counts. He testified that Hitler kept him informed of all political and military problems, he developed the Gestapo as well as the first concentration camps and the Tribunal states that “[T]here can remain no doubt that Goering was
the moving force for aggressive war second only to Hitler”. He was Luftwaffe Commander in Chief
and systematically used prisoners as slave labour, he was responsible for persecuting Jews, and gave extensive mandate in the war stating that “all necessary measures” whatever they may be, should be taken. The Tribunal concludes that “his guilt is unique in its enormity. The record
discloses no excuses for this man.” (Judgement 1).
Hess was a deputy to the Fuerher, had authority to make decisions in Hitler's name and is described as an “active supporter of preparations for war”. The Tribunal states that he “acts in an
abnormal manner, suffers from loss of memory, and has mentally deteriorated during this trial”, but
however, lands in the conclusion that “nothing suggests that Hess was not completely sane when
the acts charged against him were committed”, and he is consequently found guilty under Counts
One and Two (Judgement 2).
Ribbentrop was Foreign Minister and thereby he participated and had an active role concerning the wars against Czechoslovakia, England, France and Poland. His role often consisted of the usage of diplomatic pressure. It is also stated that he participated on a meeting at which it was agreed that
“machine gun attacks on the civilian population should be lynched” and he was responsible for
covering up the murder of a French general. He was also largely responsible for the economic and political policies that were implemented in each country and he had an important role in the
development of the final solution. Ribbentrop was found guilty under all four Counts and it is stated that “it was because Hitler's policy and plans coincided with his own ideas that Ribbentrop served
him so willingly to the end” (Judgement 3).
Keitel was responsible for initiating Case Barbarossa signed by Hitler, and implemented economic directives from Goering concerning the exploitation of Russian resources. Under the orders of Hitler he made sure that the standard of living in Poland would remain low in order to prevent the intelligentsia from forming a ruling class, and that they would only be used as labour force. Further, he gave order that attacks on soldiers in the East should be met with killing 50 to 100 Communists for one German soldier and motivated it by saying that human life as less then nothing in the East, he also “ordered military commanders always to have hostages to execute when
German soldiers were attacked” and “signed another other that legal punishment was inadequate and troop should use terrorism”. He defended himself with being under superior order but the
Tribunal responded by declaring that “superior orders, even to a soldier, cannot be considered in
mitigation where crimes as shocking and extensive have been committed consciously, ruthlessly and without military excuse or justification” and Keitel was consequently found guilty under all four
Counts (Judgement 4).
Kaltenbrunner held the position of Head of Reich Security Office, it is stated that he was aware of the conditions in the concentration camps and that he “himself ordered the execution of prisoners
in these camps”, but these order dig originate from Himmler. Yet, he is responsible for “widespread programme of war crimes and crimes against humanity” through series of reforms of the camps,
consisting amongst other things of imposing rigid labour discipline on slave labour. Kaltenbrunner was found guilty under Counts Three and Four (Judgement 5)
Rosenberg was Reich Minister for Occupied Eastern Territories and developed and spread the Nazi doctrine in the media. He was also the deputy for the Supervision of the Entire Spiritual and Ideological Training of the NSDAP, and head of APA and thereby “in charge of an organisation
whose agents were active in Nazi intrigue in all parts of the world”. He functioned as a political
adviser and is responsible for organized confiscation of public and private property. He was active in formulating policies of Germanisation, expolitation, forced labour and the extermination
directives that caused the segregation of Jews that lead to the creation of the Ghettos, and he stated that the purpose of the East was in first hand that of feeding the German people. He is found guilty on all four Counts and the Tribunal comments that “Upon occasion Rosenberg objected to the
excesses and atrocities committed by his subordinates, notably in the case of Koch, but these excesses continued and he stayed in office until the end” (Judgement 6).
Concerning the judgement of Frank, it contain several quotes that he had made, amongst other things he had stated that “Poland shall be treated like a colony, the Poles will become the slaves of
the Greater German World Empire” and that “We must annihilate the Jews wherever we find them and wherever it is possible, in order to maintain there the structure of the Reich as a whole”. It is
described that all opposition was “crushed with unmerciful harshness” under his command, that he actively participated in exploitation causing widespread starvation and that he introduced
deportation of slave labour in early stages of administration. It is stated that he willingly participated in the usage of terrorism and economic exploitation of Poland that caused mass-starvation. He was found guilty under Counts Three and Four (Judgement 7).
Frick was concerned with internal and domestic administration and he was responsible for incorporating local governments under the sovereignty of the Reich. He made legal changes that enabled the Gestapo the create concentration camps and it is stated that “He performed his tasks
with ruthless efficency”. He also administrated laws “designed to eliminate Jews from German life and economy” and it is stated that the laws created by Frick paved the way for the final solution. He
was responsible for the areas of Bohemia and Moravia and is thereby considered to bear the responsibility over the acts committed in them, he is stated to have been very well aware of the atrocities carried out in the concentration camps, and was responsible for legal questions concerning citizenship, and he “had knowledge that insane, sick and aged people, “useless eaters” were being
systematically put to death”. Frick was found guilty under Counts Two, Three and Four Judgement
8).
In the judgement of Streicher it is stated that “His persecution of the Jews was notorious” and that “Streicher was widely known as “Jew-Baiter Numer One””. It is also explained how he
“infected the German mind with the virus of anti-Semitism” and he is found guilty under Count
Four with the motivation that “Streicher's incitement to murder and extermination at the time when
Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with war crimes as defined by the charter, and constitutes a crime against humanity” (Judgement9).
Funk became active in the economic field first after the plans of waging aggressive war had been defined and he had expressed his gratitude of participating in these events in a letter to Hitler. He participated in the economic preparation for some aggressive wars, he claimed that he had no knowledge of, for example collecting of teeth-fillings in the Reichbank, but the Tribunal states that he “either knew what was being received of deliberately closing his eyes to what was being done”. He was indirectly involved in the utilization of concentration camp labour and having said that
“[I]t makes no difference to me in this connection if you say that your people will starve” Despite
that Funk never was a dominant figure of any of the various programmes which he attended he was found guilty under Counts Two, Three and Four (Judgement 10).
Doenitz is held responsible for waging aggressive war as defined in the Charter, and concerns in particular submarin warfare. After issuing a warning to neutral ships that their safety could no longer be taken for granted he gave the orders to “make immediately unrestricted use of weapons
against all ships”. He is responsible for the sinking of neutral ships as well as ordering the killing
of shipwrecked survivors. He also employed prisoners from concentration camps to work as slave-labour in the shipyards. Doenitz was found guilty under Counts Two and Three (judgement¹¹).
Raeder was Admiral Inspector of the navy and he accepts full responsibility over it until his retirement in 1943. He gave permission to attack Russian submarines six days before the invasion with the motivation that they were “snooping” on German activities. The tribunal states that the
“most serious charge against Raeder is that he carried out unrestricted submarine warfare, including sinking of unarmed merchant ships, of neutrals, non-rescue and machine-gunning of survivors”. He was found guilty under counts one, two and three (Judgement 12).
von Schirach was in charge of an intensive programme of Nazi propaganda. By using both violence and official pressure, he made sure to take over or dissolve all groups that competed with the Hitler Jugend, proposing the “noble destiny of German youth to die for Hitler”. He was under the command of Sauckel, and produced directives concerning forced labour in which it was stated that they “should be fed, sheltered and treated so as the exploit them the highest possible degree at
the lowest possible expense”. He was found guilty under Count Four (Judgement 13).
Sauckel was appointed Plenipotentiary General for utilization of Labour, and also had the responsibility over foreign slave labour. He developed the systematic exploitation programme for the mobilization of the labour forces by compulsory means. He argues that he was not responsible for the excesses of the programme however, the tribunal still consider him responsible as he was in charge, and further, that he was aware of the ruthless methods that were being used in order to
obtain labour. He was also responsible for transport and was very well informed of the bad conditions, “The evidence shows that Sauckel was in charge of a programme which involved
deportation for slave labour of more then 500, 000 human beings, many of them under terrible conditions of cruelty and suffering”. He was found guilty under Counts Three and Four (Judgement
14).
Jodl was High Command of the armed forces and was the actual planner of the war and responsible in large measure for the strategy and conduct of operations. He defends himself by stating that he was a soldier sworn to obedience and not a politician, however, in the judgement it is described how he actively and willingly participated. He gave orders to burn houses in northern Norway so that they could not help the Russians and the tribunal states that “Participation in such
crimes have never been required of any soldier and he cannot shield himself behind the mythical requirement of soldierly obedience at all costs as his excuse for commission of these crimes”. He
was found guilty under all four Counts (Judgement 15).
Seyss-Inquart was the Austrian Minister of Security and thereby, he had control over police. He participated in the last stages of the occupation of Austria and was then made Chancellor. Under his time as Governor of Austria, all political opponents were sent to concentration camps by the
Gestapo, they were mistreated and often killed. He developed a programme through which it
became possible to annihilate opponents and was responsible for the economic administration of the Netherlands and the Tribunal states “fact remains that Seyss-Inquart was a knowing and voluntary
participant in war crimes and crimes against humanity which were committed in the occupation of the Netherlands”. He was found guilty under Counts Two, Three and Four (Judgement 16).
Speer was Hitler's architect and became his confidant. He also became head of armament industry after the wars had been initiated but was not part in planning. The indictment under count three and four relates to his participation in the slave labour programme, but he did not have any administrative responsibility for creating it, but used slave labour in his industries. However, he did establish what was referred to as the “blocked industries”, which meant that the employees of such industries were immune from deportation, considered by the Tribunal to be somewhat less
inhumane then the deportations, but yet illegal. He also consequently used large figures of
concentration camp labour in the industries over which he had control and “was informed that his
demands for labour were so large as to necessitate violent methods in recruiting”. He was found
guilty under Counts, Three and Four (Judgement 17).
several wars. He resigned in 1938 but remained at several positions, amongst others as Reich protector over Bohemia and Moravia, Czechoslovakia. He systematically made use of collective punishment in these areas, it is written that he “issued a proclamation of warning against any acts
of sabotage and stating that “responsibility for all acts of sabotage is attributed not only to
individual perpetrators but to the entire Czech population””. To mention a practical example of this
all universities were closed after students had held a demonstration against the new rule, von
Neurath claims that his signature, in this case, was used without his authority. However, he “played
an important role in the wars of aggression which Germany was waging in the East knowing that war crimes and crimes against humanity were being committed under his authority”. He was found
guilty under all four Counts (Judgement 18).
Bormann was political and organisational head of the Volkssturm and General in the SS. It is stated that “He devoted much of his time to the persecution of the churches and of the Jews within
Germany”. He took over the offices and power held by Hess in 1941 and responsible for laws and
orders issued thereafter, and was promoted Reich Defence Commissioner. There are several
quotations that are very interesting in this case, it is written that “Bormann was extremely active in
the persecution of Jews, not only in German but also in the absorbed and conquered countries” and
“Bormann was prominent in the slave labour programme”. However, it is also stated that he made directives concerning the treatment of foreign workers and ordered the mistreatment to cease arguing that these workers were subject under SS control. Yet, he is also held responsible for prohibiting what is referred to as decent burials for Russian Prisoners of war and that he is responsible for the lynching of Allied airmen. He was found guilty under Counts Three and Four, and was judged in absentia (Judgement 19).
Apart from above mentioned persons who were all found guilty under the indictment, three persons were found not guilty and freed. The first one f these was Fritzche, he was a radio commentator and stood accused for waging of war, however, he never held any administrative positions, and never executed any of the acts of which he encouraged people to engage in (Judgement20). The second case concern Schact. He was president over the Reichsbank and had several disputes with Goering in particular, and later also with Hitler. He “participated in plans to
get rid of Hitler, first by deposing him and later by assassination”, however, he was arrested by
Gestapo and put in a concentration camp (Judgement 21). Lastly, von Papen was found not guilty under the indictment despite having, in the notion of being Vice Chancellor of the Cabinet, put pressure on Austria in particular to enter agreements with the Reich. However, he never participated
in the planning of the invasion and could not be found guilty under any sections under the indictment (Judgement 22).
2.4 Discussion
At this point, I would like to bring the attention to four main concerns of mine.
The first concerns the actions of the inhumane human that is defined in the indictment. I am of the opinion that these are highly important, as these actions seem to represent the threshold on which a person is undressed of of his or hers humanity, and come to represent the monster. The unity of act, person and ideology is thereby what constitute monstrosity to the very degree that the one indulging in such behaviour can no longer be considered a human being. The person clearly turns into a borderline figure of being the embodiment of the inhumane, falsely dresses in a human body. The fourth chapter of my thesis will concern the examination of this state of being and the structure of which that is its origin and thereby I hope to offer an answer on how the legal system, in this sense, have come to reproduce the crime of dehumanization in order to sentence anyone for it.
My second concern regards the fact that these monstrous acts are not limited to be simple acts that occur during certain circumstances. I believe that it is clear to see, when reading the
judgements, that the Tribunal consequently trace these acts into the general behaviour, the nature or characteristics of the defendants. This particularly concern whether the defendants were
sympathetic to the Nazi doctrine, which ought really be irrelevant as political belief in itself does not constitute a crime. Thereby, the persons are not judged for acts solely, they are also judged for their behaviour, and in this case also political opinion in large, as this is what is said to have caused the acts to start with, and not having been placed under certain circumstances.
Thirdly, I would like to bring the attention to the very fact that these persons that are sentenced for being human monsters, does not seem to have committed the physical acts that constitute the crimes. They are guilty of having given orders, administrated and organized the crimes. Perhaps the legal monster has not changed since the French revolution, perhaps the legal monster still remain the leader, the mass murder that never killed.
Lastly, I would like to bring up some questions concerning the legality of the Tribunal. One of the most essential legal principles read nullum crime sine lege, that is, no crime without law. It could be said to be a rational and simple principle. However, during the Nuremberg process, the defendants were sentenced in accordance with laws that were not formulated or in force at the time
when the crimes where committed. When stating this, I refer to the Charter of the International Military Tribunal, and not the Hague Regulations, which most certainly were binding and in force when the acts were committed. Yet, despite the existence of these laws, new and more specified laws are constituted by the Allied countries after the acts have been committed, in accordance with which the defendants were charged. One have to question what force that lay behind this
phenomenon, the necessity of illegalizing ideas and practices of this kind, and I hope to also be able to answer this in the following chapter.
Chapter 3
3.1 Chapter Outline
In this chapter I will explain the characteristics of biopolitics. I consider it to be highly relevant as it is a theory that aim to explain, amongst other things, why individuals became subject for
behavioural sciences to begin with. In order to fully comprehend the biopolitical ideas I believe that it is reasonable to begin with the theories of Hannah Arendt presented in “the Human Condition”. I will especially to focus on her ideas of the realm which she defines as the social as it could be said to be an early identification of main characteristics biopolitics and its effects as such, despite that she never uses that terminology. Then I will present Foucault's concept of biopolitics through a presentation of a text called “the Political Technology of Individuals” as it presents both origin and fundamental structure of biopolitics. Lastly, I will end the chapter with a discussion on how this have resulted in the situation at which the human being have become subject for behavioural sciences and also how this could be said to to the factor behind the creation of the figure of the inhumane human.
3.1.1 The Rise of the Social
Arendt make the claim that the modern concept of what we consider political has been gravely misinterpreted as concerning its original meaning (Arendt, 1998: 23). According to Aristotele there were only two activities that could be considered political from which the realm of human affairs rise, that is action (praxis) and speech (lexis). This realm is to be devoted for intellectual activity, and everything that is related to what is defined as practical necessity is expelled (Arendt, 1998: 25). This means that the original concept of what is political does not concern itself at all with anything that is related to the material life of the physical persons living within the state, and also that politics, in this aspect, was never understood as something to be confused with society (Arendt, 1998: 27).
According to Arendt, the realm of the social as we presently know it appear during the birth of the modern nation-state when one of the most important functions of society as such come to be interpreted as being union in which people participate in order to reach a common goal, which for most part is their biological preservation (Arendt, 1998: 28, 46). The realm of the social did exist in the ancient democratic city-states, but its function there was limited to separate the political from the private. The social could in this aspect be understood as regulation, as law and norms. In the
birth of the modern nation-state on the other hand, in its centrism around preservation of life, a process was generated during which the political as well as the private spheres have become completely absorbed into the social and subjected to ever growing regulation (Arendt, 1998: 47).
Arendt defines the final stage of this process as conformism and normalization, that result in the exclusion of all spontaneous or outstanding achievement (Arendt, 1998: 40) and she writes that
“the unfortunate truth about behaviourism (laws of statistics) and the validity of its “laws” is that the more people there are, the more likely they are to behave and less likely to tolerate
non-behaviour” (Arendt, 1998: 43). This growing control and regulation of human behaviour is what
constitute the concept of mass-society; it is the point where all of that which is private as well as public is subject to regulation. The public has according to Arendt, the function of signifying the world itself (Arendt, 1998: 52), and therefore, the result of applying normality and regulation on it does not only result in intolerance and conformism, it is also so that we loose all capacity to relate and separate ourselves from one another, to actually meet and part. Instead we continuously reproduce behaviour and norms and thereby we have turned into pre-programmed beings with no behaviour or characteristics of our own, and if a person despite this structure would engage in such activities, it would immediately result in sanction (Arendt, 1998: 53). As concerning the private, Arendt argues that its elimination will inevitably lead to a confusion between necessities of life and freedom (Arendt, 1998: 71).
3.1.2 Biopolitic
Foucault starts “the Political Technology of Individuals” with asking the question “what are we in
our actuality?” (Foucault, 146) and he aims to answer this question by an analyse of the relation
between thought and practices in Western society. He also concerns himself with how we constitute ourselves by the exclusion of others, for example criminals and mad persons, meaning that we somehow constitute our identity through some ethical techniques of the selves which leads us to recognize ourselves as a society, part of a social entity, part of a state or nation (Foucault, 146).
He describes the works of J. P. Frank, who wrote the first great systematic programme of public health, and in detail described its administration and various functions and shows how the health of the individual at this point is becoming a concern for the modern nation-state, the new system of rule. He draws parallels between the event of the French Revolution with World War II, which are both similar in degree of violence, extensive massacres, and such. As with the French Revolution, it is in the period of World War II that great welfare, public health and medical assistance programs
are initiated. He ironically describes these antinomies of political rationality with saying “Go get
slaughtered and we promise you a long and pleasant life. Life insurance is connected with death command” (Foucault, 147).
Modern political rationality, or the reason of the state, is centred around the preservation, expansion and felicity of itself, and any means considered rational in this process of re-enforcement will be deployed (Foucault, 148). During the enlightenment, reason of the state was regarded as an art and not associated with arbitrariness or violence. The art of governing a population was rational under the premise that it observed what it actually governed; the state itself (Foucault, 149). The goal of governing is thereby not longer about reinforcing the power of a specific ruler as in a feudal society, the new goal of governing is to reinforce the state itself (Foucault, 150). One could possibly described the creation of the modern nation state as a point where the state is separated from the both the population and the rulers, it turns into an entity of its own. It is no coincidence that the politician appear at this time. The politician, has from this point and onwards two roles; one as the legitimate ruler over the people through the implementation of democracy, and an other as an administrator of the state. The difference between the administrative politician and the ruling king is massive, it means that the modern state most certainly have become an entity of its own, existing impartially of our awareness of its logic (Foucault, 151).
The state is its own finality and its only concern is reinforcement. Consequently, when it comes to the relation between the state and the individual living in it, this individual is only relevant insofar they are relevant in the reinforcement of the state, whereby the secondary effect is that the state is deeply concerned with every part of the life; individual behaviour, consumption, work, activity, health, productivity and so on (Foucault, 152). The integration of individuals in the state's utility is no longer obtained by an ethical community as in the old Greek city-states, “it is obtained
by a new political rationality by a certain specific technique called then, and at this moment, the police” (Foucault, 153).
The police functions as a unit that foster behaviour, civil respect and morality, meaning that morality and virtue that is useful for the state, and those individuals who do not comply under these norms will suffer constantly under a social stigma. Foucault gives an example of this using the works of Turquet. Turquet proposed that all persons above the age of twenty-five ought to be registered by occupation, those who had non, the unemployed, would be “regarded as the dregs of
society” (Foucault, 154). The police appear at the same time as the judicial administration and it is
remains alive, active and productive (Foucault, 155-156). This interest in individuals represents a shift of interest, as the feudal power only was concerned with legal subjects. Legal subjects actively take contact with the feudal power, for example to enter a marriage, in the relationship between the modern state and the individual however, this relationship is turned around and the consequences of this is logical (Foucault, 156); when the focus comes to be placed upon individuals and not legal subjects, the police have to enforce surveillance in order to correlate the utility of the state with the utility of the individuals (Foucault, 157). As we can see, this is the point where the happiness of individuals turns into a political object as it is required for the survival of the state.
The police was not only an administrative practice, at this time the police became a discipline that was thought on universities, and in the manuals for students, the police is defined as a force taking care of the individuals living in society, and they also engage in the study of individuals; their conduct, their honesty, to which degree they are able to respect law (Foucault, 158-159). It is under this political rationality that the population, in the terms of how we know it presently, becomes a resource for the state. According to Foucault, this is power of living beings as living beings as such, and it is politics, a combination manifesting itself as the phenomenon of biopolitics, and he says that “I think that the main characteristic of our political rationality is the fact that this
integration of the individuals in a community or in a totality results from a constant correlation between an increasing individualization and the reinforcement of this totality” (Foucault, 160-161).
Further, he argues that order through law was an utopian dream of the enlightenment, and that it ought to remain only a dream since its administration have always failed to maintain order, it fails in integrating law into the order of the state. Lastly, the rise of the various behavioural sciences is not an isolated phenomenon; it is directly linked to the new political rationality of the political technology of biopolitic (Foucault, 162).
3.3 Discussion
Now, if the structures behind biopolitic or mass-society, which according to Foucault and Arendt is embedded in every modern state, presented the possibility of embedding psychiatry in law, then this could be said to be one possible answer on how the inhumane human occurred.
That a “pathological” human being could thereby be said to represent the crime before it is committed may also work perfectly the other way around, that is, it could offer a possible explanation of a logic through which it became possible to convict persons for acts that did not constitute a crime when they were committed. By this I mean that if the inhumanity of the acts is
embedded in a person before committing any such acts, then it most certainly keep being so after the act have been committed as well, and thereby it could perfectly make sense to convict a person for the nature of past acts, since they still lay, maybe latently but yet potentially, within the person. In this sense, the act itself may be said to be an occurrence of the moment, but the conduct of a person could on the other hand be considered a more constant feature. Drawn to its extreme point one could argue, from a biopolitical perspective, that the reason that these persons were convicted for acts that were not illegal when they were performed, was simply that they in the notion of consisting fundamentally of the nature of the defendant, the crime could say to continue happen by the mere fact that it is explained as being in their nature, and that the persons could thereby be said violating the laws through their potentiality even if they had not been formulated to be retroactive.
Yet, there is one aspect of the trials, and the creation of the human monster that have to be put up for discussion that questions the presupposition biopolitical structure would immediately effect in sanctioning of all unwanted behaviours. That is the following; the persons who where convicted was, as previously mentioned, in large extent administers and bureaucrats, few was actually in a position on which they actively gave orders to perform torture or murder and saw these actions carried out. Thereby there is a gap between the acts and the defendants. In Arendt's work on the Eichmann case she seems slightly surprised, or perhaps even angry, over the fact that the persons who systematically worked with enforcing such orders walked free, and that the general attitude over this was reluctant (Arendt, 1996: 19). I do see the provocation of a situation where hundreds of people who have systematically engaged in the performance of various kinds of torture,
experiments and murder walk free, and that this is met with reluctance. However, there is an other aspect of this which I like to bring up, and that is the question of whether these behaviours could actually be considered monstrous or inhumane? Throughout the previous pages there have been given several examples of occasions within which these behaviours and acts have occurred, and they keep occurring. It seems to me that these behaviours are in fact very human, both in the sense that they are performed by average human beings, and as they are repeated. If these behaviours are, however provocative it may seem, somehow natural to us, then the cause of why they occur or not occur could rather be said to be found in external circumstances and not on the basis of some wicked sort of human monstrosity.
This also lead to the questioning of why these acts, despite their human nature, is so heavily sanctioned? Why do these documents go so far in saying that a person who perform these acts is merely a human being? Could there be said to be dangers in truly realizing that human beings are
complex beings, and in saying that when we encounter certain situations, we may very well be able to perform such acts ourselves? And is this then the reason for persecuting only those highest up in the chain of command?
I do wish to clarify that I do not believe that behavioural sciences are non-sciences. What concerns me is rather the morality that we tend to load behaviour with, and when it comes to law I have developed a peculiar interest in how morality is embedded, for which purposes and with which effects.
Chapter 4
4.1 Chapter Outline
In the first section under this chapter I will explain the the paradox of sovereignty and how it result in a phenomenon that Agamben define as the state of exception, and then present his analysis of the structure behind law as such, and thereby I hope to provide an answer for the question of why the legal institutions have come to perform crime in order to sentence anyone for it. After this I will present a section that deals with the relation between biopolitic and the final solution, and
eventually landing in an examination on however the biopolitical structure could be said to offer an other explanation the figure of inhumane human as well as the acts which it commit.
4.2 The Paradox of Sovereignty 4.2.1 The State of Exception
The paradox of sovereignty read that in the notion of being the constitutive power as such, the sovereign is placed both inside and outside the legal system. Agamben focuses on the structural topology of the paradox, and the phenomenon, or perhaps privilege, of the sovereign to legally place itself outside the law, is defined by Agamben as the state of exception (Agamben, 2010: 27). In order to unfold the mechanisms behind the state of exception, one have to examine the normative structure of the judicial system.
The essential function of the judicial system is to create order, and since no order can be applied on a chaos, this order have to be implemented to ensure the judicial system meaning and influence. Perhaps one can relate this to Foucault's study of the role of psychology in law; namely, the function of normalization. In particular I wish to bring up the aspect that concerning
normalization in terms of psychology, and that is that it normalizes in the name of health.
Psychology seems to me somehow have adopted the role, not only of describing different patterns of behaviour and attempt to understand the eventual causes, but it has also the role of determining healthy and unhealthy behaviour as well as the normal and the pathological. Through different means of normalization, a normative situation is devised and the one who hold the definite decision over the order is by all logic the sovereign. This means that what constitutes a sovereign, according to Agamben, is not the monopoly of violence or excessive rule, but the monopolization of mere decision. The state of exception confirm this role of the sovereign as it does not need to make use of
law in order to constitute it (Agamben, 2010: 28). This could be said to be manifested through the self-appointed mandate to create praxis and judge over situations that are not necessarily regulated in law.
When one examines this situation closer, it is clear that the state of exception represent a form of exclusion as it diverge from the norm, however, it does not diverge in a way that do not correlate to the norm. Actually, it seems to be the function of the state of exception both to create and to reinforce the norm (Agamben, 2010: 29). This means that since the sovereign places itself outside law, and is not subjected to its own regulations, it seems as though the rule is both created and reinforced. I would like to argue that it is this structure that is encountered in the practical situation through which a tribunal, as in the case of the Nuremberg Trials, perform a crime in order sentence anyone for it. The verdicts from the Nuremberg Trials clearly enforce the norm, that is, they
sanction unwanted behaviour. But the fact remains that the sovereign, in this case the Allied
countries, is placed outside the legal system in the state of exception and dehumanize the defendants in the exact same way that the defendants dehumanized the Jews. This does not, however, result in any form of crises in relation to the norm, there was no defendant saying “well, why should it be illegal for me to dehumanize Jews when you dehumanize me?” to the judges, in the opposite, it follows Agamben's thesis very well, that is, it rather enforce the norm that dehumanization is inhumane.
Thereby, one could say that the legal order is based upon a structure which at the best can be described as an inclusion which at the same time is excluded, as it defines itself as being outside itself, and the sovereign has thereby placed itself both inside and outside the legal system. One could say that the general rule, or the state of normality, is what create room for the state of
exception; it is included not only through prohibition, but also though a suspension of the validity of the order itself. This can also can be seen in the Nuremberg Trials, as the practices dehumanization is monopolized by the Tribunal itself. It is a suspension and exclusion of the norm, but it seems to also be the key to reinforce the norm, a situation that could be seen also in the monopolization of violence for example. This means that the power of the legal system lies within its capability to uphold and maintain a relation towards something external, the extreme form of relation, that include by exclusion is therefore what Agamben defines not only as the relation of exception, but the structural origin of sovereign power (Agamben, 2010: 30).
The legal norm have to be applicable independently of the separate case, and the legal norm can only refer to the separate case if the exception of sovereignty continuously remain in force as
