375 Lecture Notes PDF

Keywords/themes: White paranoia, homophobia, Frantz Fanon's recitation of the racist interpelation" Judicial violence, killing twice, Racist interpellation, the pointing or calling out foreshadowing of an accusation. Week 7: Banality of Exception/Emergency The major themes of thw week: State of...

Keywords/themes: White paranoia, homophobia, Frantz Fanon's recitation of the racist interpelation" Judicial violence, killing twice, Racist interpellation, the pointing or calling out foreshadowing of an accusation. Week 7: Banality of Exception/Emergency The major themes of thw week: State of exception, What does it mean? Extraordinary measures, natural or human made disasters that destablizes and threatens the order, exceptional out of the ordinary situations, state of alertness, the unknown and uncertainties, the state’s claim to protect and preserve itself, continue its sovereignty, and when you see it like this everything becomes legitimate. Suspension of ordinary law to restore or protect the legal and political order, though this often blurs the boundary between legality and illegality. What are different legal traditions of exception/emergency? KHKs (Executive decrees), institutional kayyımlık, appointment from above, removal or detention without charge, there is a suspicion of treason that is very “useful” , enables the space of maneuver for the state. Enabling What does SoE say about our conceptions of law and legality and its boundaries? Law’s Fragility: The SoE reveals that law is not an absolute structure; it can be suspended, manipulated or transcended under extraordinary circumstances. Paradox of Legality: SoE often involves acts that are legalized illegality. the law itself may authorize its own suspension. The Zone of Indistinction: Agamben argues that in SoE, the distinction between law and lawlessness collapses, creating a zone of indistinction. What does it say about the relationship between law and politics, especially, sovereignty (law and the making of sovereign power)?  Carl Schmitt (1920s): "Sovereign is he who decides on the exception" (the focus on "decision" and actor's will, voluntarism; critique of liberalism) Sovereign can both uphold the legal order and disrupt it to preserve the state. going beyond the limits of the law to be able to suspend them or to call out such states of exception, voluntarism, he doesn’t buy the liberalism of equality before the law and says that it is all about a political entity, he is a nazi btw. Giorgio Agamben (works in 1990s and early 2000s): (Suspension or law by law, zone of indistinction, ambiguity) Law, sovereignty, and violence (with Benjamin). Agamben gets rid of the voluntaristic figure (that Schmitt describes) who decides on the sovereignty of exception, state of exception not as an absence of law, but the suspension of law by law. constant blurring of the boundaries between legal, illegal, unpredictability within law, and non-law. You don’t fully suspend the constitution since you still need to refer to it in the state of exception. law is there but crossed out (bunu çiz) Walter Benjamin (1940): "The tradition of the oppressed teaches us that the "state of exception" ["Ausnahmezustand"] in which we live is not the exception but the rule. We must attain a conception of history that accords with this insight. Then we will clearly see that it is our task to bring about a real state of exception, and this will improve our position in the struggle against fascism." More of a historical structural argument, not everyone experiences the state of exception in the same way, certain classes of people are the target of the regime, state more focused on the governmental regime than how people are targeted by it, banality and normalization of the state of emergency. Emergency also in a positive light, emergency challenges the order so it opens up new political possibilities, thus new opportunities arise, moments of destruction and revolutions are also states of emergency Colonialism and state of exception/emergency (Morton) What are the dominant ways of studying SoE? … There are declared emergencies, but there are also partial emergencies, like the mayday or feminist marches, they fragment the space into different zones of emergency in terms of police forces etc. Mobile emergencies. Guantanamo outside of law, would Nasser Hussain agree with this? Is Guantanamo outside the bounds of law? Guantanamo located in Cuba, outside the bounds of law, a legal blackhole they call it, a bay of military zone of the US army, a zone close to the US, black site, where they displace the people who they see as “dangerous”, evidence is not there yet but there is a suspicion, they lock them in these black sites. Depending on the detainees, there is a long term of detainment without evidence or charge. Homogeneity of labeling entire peoples without knowing what they have done. Secrecy, military zones. Guantanamo is a place of non-law where the sovereign power can do anything without no real accountability. No constitutional rights, genova law, new literature to justify their actions. Instead of labeling these people as prisoners of law which would make them have to release them-, they call them “unlawful enemy combatants” , creating an ambiguous category. (a classification act) Nassar Hussain criticizes that it is easy to classify this place as a non-law, non-place, he tries to bring it back to the world. He says that it is not a legal black-hole but a legal loophole. Not a non-law, non-existent site, to see it outside of the law would reproduce the fact that the authorities are not accountable for their actions. Also a colonialist perception that they deem the people under this state as “primitive people” who are not applicable to the law. Hierarchical treatment of people, misuse of power. Hussain says that the classification and the numbering of the populations, we are already there. He looks at the different continuities and doesn’t just blame the Bush administration, the state of exception is not out of nowhere. The Authorization of the Use of Military Force in 2000 ruled. War of terrorism as unending, but the boundaries of the war were never declared to begin with. There are no spatial temporal limitations to it either. “Guantanamo as both a war camp and an immigration jail of sorts” Not just people from Afghanistan but can be immigrants from the US who are deemed suspicious. Construction of certain people as a danger to the community, in the moments of exception weaponized against the immigrant people. Hussain defines the SoE as a dynamic and layered condition where law and exception coexist and overlap, enabled by legal, bureaucratic, and administrative mechanisms rather than a complete suspension of legal norms. Nasser Hussain’s Problem with the Dominant/Common Understandings of the State of Exception (and Guantánamo) In his essay, "Beyond Norm and Exception: Guantánamo", Nasser Hussain critiques the dominant theoretical understandings of the State of Exception—particularly those of Carl Schmitt and Giorgio Agamben—for being overly abstract and binary. He argues that these frameworks focus too much on the suspension of law and the absolute sovereign decision, neglecting the complex entanglements of law, bureaucracy, and governance that shape spaces like Guantánamo. Hussain’s Argument 1. Against the Binary of Norm vs. Exception: ○ Hussain argues that the common framing of SoE as a clear break between "normal law" and "lawlessness" is too simplistic. Instead of being a complete suspension of law, spaces like Guantánamo involve a proliferation of legal frameworks and bureaucratic practices. ○ Guantánamo is not a place of pure lawlessness; rather, it is a highly legalized space, where laws are carefully manipulated and reinterpreted to enable practices like indefinite detention and enhanced interrogation. 2. Law as Productive, Not Absent: ○ Instead of viewing Guantánamo as a space where law is absent (as Agamben might suggest), Hussain highlights how law is used to create and sustain the exception. For example, detainees’ designation as "unlawful enemy combatants" is a legal category, and military commissions are legal mechanisms. 3. Focus on Bureaucracy and Everyday Governance: ○ Hussain emphasizes the role of bureaucratic practices and administrative decisions in producing and maintaining the SoE. These practices create a system of "legalized exceptions," where normal and exceptional legal orders are constantly blurred and negotiated. How Does Hussain Illustrate His Argument Through Guantánamo? 1. Proliferation of Legal Categories: ○ Hussain points to how the U.S. government employed legal ingenuity to justify Guantánamo: The classification of detainees as "unlawful combatants" bypassed the Geneva Conventions. Military commissions, established outside traditional U.S. courts, created a parallel legal system. 2. Bureaucratic Layers of Control:  ○ He shows how everyday bureaucratic practices, such as detainee files, interrogation protocols, and detention reviews, reinforce the exceptional status of Guantánamo without a complete suspension of legality. 3. Normalizing the Exception: ○ Guantánamo becomes a site where the exception is normalized through legal, administrative, and political frameworks. The camp is both an extraordinary measure and a routinized part of U.S. governance. Major Contribution of Hussain’s Argument (Final Part of His Essay) Hussain’s major contribution lies in challenging the binary thinking of norm versus exception and proposing a more nuanced understanding of how the SoE operates. His insights include: 1. Blurring of Norm and Exception: ○ By highlighting the coexistence of law and exception in Guantánamo, Hussain reframes the SoE as a continuum rather than a rupture. ○ He argues that the law does not simply disappear in an SoE; it adapts, expands, and is manipulated to sustain exceptional practices. 2. Shifting the Focus to Bureaucratic Governance: ○ Hussain brings attention to the bureaucratic apparatus that makes the exception possible. He moves beyond the abstract sovereign decision to examine the practical, everyday mechanisms through which exceptions are implemented and maintained. 3. Contributions to Critical Legal Studies: ○ His argument offers a critical lens to study SoE not as a theoretical abstraction but as a lived, institutionalized process with material effects on individuals and societies. Life in Guantánamo as a Detainee (Mansoor) and After Guantánamo Mansoor Adayfi, a former Guantánamo detainee, provides a personal and human perspective on life during and after detention: 1. Life in Guantánamo: ○ Mansoor’s memoir ("Don't Forget Us Here") describes:  Psychological and physical torture: Detainees endured beatings, forced-feedings, and sensory deprivation. Dehumanization: Detainees were stripped of personal identity, subjected to constant surveillance, and treated as "subhuman." Moments of Resistance: Despite the oppression, detainees found ways to resist through hunger strikes, small acts of defiance, and fostering solidarity among themselves. 2. Life After Guantánamo: ○ After his release, Mansoor faced significant challenges: Stigma and surveillance: As a former detainee, he was marked as a "terror suspect," limiting his freedom and opportunities. Struggles with reintegration: He was forcibly resettled to Serbia, a place he had no connection to, where he experienced isolation, harassment, and lack of support. His post-Guantánamo life reflects how the exception bleeds into the normal: the legal and social restrictions imposed on him continued long after his release. What Does Mansoor’s Story Say About the Boundaries Between the Exception and the Normal? 1. The Continuity of the Exception: ○ Mansoor’s life illustrates how the exception extends beyond the physical space of Guantánamo. The stigma, surveillance, and restrictions he faced after his release show that the SoE does not end when the "crisis" ends; it leaves a lasting impact on individuals and societies. 2. The Blurring of Lines: ○ His experiences highlight the blurring of boundaries between the exceptional and the normal. Even outside Guantánamo, Mansoor’s life was governed by restrictions and suspicions that mirrored the exceptional conditions of his detention. Most Insightful Scene to Think About SoE and Normality One particularly insightful scene from Mansoor’s memoir involves his description of the forced-feeding during hunger strikes: Why It's Insightful: ○ The act of forced-feeding embodies the intersection of law, violence, and governance in the SoE. It is carried out under the guise of "medical care" (a legal justification) but is experienced as a form of violent punishment. This illustrates how the bureaucratic apparatus masks brutality as legality. ○ The normalization of such practices within the camp reflects how the exception becomes routinized and embedded in institutional practices. This scene also underscores the inhumanity and contradictions of the SoE: detainees are deprived of basic rights but kept alive to preserve the facade of legal and ethical responsibility. It reveals the deep entanglement of law, violence, and power in sustaining the exception. 22.11.2024 WEEK 9: The Witness and the Unspeakable: Gujarat Trials in India Chatterjee, Composing Violence: The Limits of Exposure and the Making of Minorities The major themes/questions: - What is the role of law in addressing the problem of collective/mass violence/pogroms (state-sanctioned violence)? What are the limits and promises of the legal form? Labeling it as specifically a minority problem, so that makes it a problem “outside” the norm, an exclusion. Pogroms described and presented as spontaneous events, people coming together suddenly, “they first did it and then we responded”, composed violence with organized actors, temporally and spatially located and a moment of interruption, passionate crime. Driven by individual actors and has no history behind it. Conspiracy, invisible, actors involved try to make the invisible visible. “Once people know about it people will try to do something about it”. Violence is hidden from sight, you make it visible, you expose it and justice will follow. —> Politics of Exposure Chatterjee challenges this depiction of collective violence, pogroms. He shows this through the Gujarat pogroms, people involved are aware and proud of the violence. Pleasure of violence. “We taught them a lesson” - How does Moyukh Chatterjee challenge the common depictions/understandings of collective violence, especially, in the global South - in India? What does M. Chatterjee mean by the "politics of exposure"? What is his problem with it and what does he propose instead as a way to understand and engage the sources and dynamics of violence? - Excerpts from the documentary: Final Solution (2003) - Documentary Film on 2002 Gujarat “Composing violence instead of exposing it” Once you call out violence that is already exposed, you are further contributing to the creation of a permanent majority and minority. But if you evaluate the everyday interactions maybe by what institutions and actors involved, criminal event that has perpetrators and witnesses. Communal violence, between people who know eacb other, within familial people. Act of compositions, stitching and weaving different actors who come together, weaving and composing violence. Unpack and reconstruct the judicial scene. Unpacking how it can get normalized. From the chapters "Against the Witness" and "Beyond the Unspeakable" What does the witnessing of Abdul in the court show us about what M. Chatterjee calls "the crisis of witnessing"? How does the law function in the aftermath of the Gujarat pogroms? What does Chatterjee mean by "recomposing witnessing"? In Chatterjee's view, what is the problem of the dominant conceptions/depictions of sexual violence and what does he propose instead? What is the experience of Shashana and her mother say about the problems of sexual violence and the law's mode of addressing it? What does Chatterjee mean by the "logic of exaggeration"? What new perspectives does the artwork/video installation of The Lightning Testimonies by Amar Kanwar show about sexual violence - its sources and dynamics? Issue of the naming, history between the hindu and the muslims, they are intermingled, they know the street name of a person but not the official name and in the legal positivist sense you need to know the official name. Compositions of the street the police the law… Response: about the chapter beyond the unspeakable According to the dominant understanding of sexual violence, there is a tendency to deem it unspeakable, even though it is widespread and represented in the media, like the Gujarat pogrom. Chatterjee explores why that is the case, rather than embarking on a mission to make the invisible visible. He does this not by relying on the legal tools that engage with sexual violence (or lack thereof) but instead by focusing on how said tools are used as part of acts constituting minorities, specifically Muslim women. Problems within the dominant understanding include how it assumes sexuality and women’s bodies as sacred and fundamentally untouchable. This paradoxically perpetuates sexual violence, by enabling women’s bodies to be used as battlegrounds for political propaganda, turning them into symbols through which ideologies are displayed. In this understanding, sexual violence is a stable object, with rape at its center, and the authorities rely solely on FIRs. Exaggeration is often used by authorities to downplay records of sexual violence that don’t fit the definition of rape. When faced with allegations of rape, they respond via loopholes, such as refusing to acknowledge cases without visibly violated bodies. Chatterjee counters by questioning the structure that makes such violence possible. This is why he focuses on Shahana’s case, which is deemed “not good” because there is nothing for an anthropologist to “unveil”. Shahana resists being framed as a “rape victim,” which would further marginalize her by forcing her into the legally predefined subject of a victim. Chatterjee argues that this resistance is precisely what makes it significant, as it helps us understand how the dominant understanding reinforces marginality and constructs minorities. The artwork provides Chatterjee with a way to approach sexual violence, not by unveiling what is invisible, or by “embroidering” fragmented acts of sexual violence into single form of “rape,” but by embracing the fragmented narratives of women who were victims of sexual assault. He argues against trying to fit their experiences into an Event, instead he promotes approaching their narratives as part of their daily lives, since for these women, that is the reality. I found his argument convincing. I resonated with ideas like going beyond exposure, as exposure alone seems to be the provocative and “woke” element of today’s activism. Focus on exposure often becomes a self-fulfilling prophecy. Continuous exposure leads to a cycle where issues are revealed but not addressed, a loop of revelation without resolution. 29.11.2024 Since the partition period, women’s sexual violence has been a prominent part of India’s state policy. Battleground ideology —> aesthetics of the violence, killing over and over in public spheres through humiliation and grotesque measures. The landscapes used in the Lightning testimonies —> Ecologies of violence, the buffer zones, reminding people of the intertextuality and surrounding of violence in Gujarat maybe. 06.12.2024 Unpacking Transitional Justice: Law, Violence, Memory, Confession and Justice Overview What is transitional justice? What procedures, institutions, discourses, and practices does TJ refer to? What is the place of law - its promises and pitfalls? Think about Durkheim, Marx, Foucault, and queer and feminist theories (Butler...) in this context. Sense of new starts and temporality victims, perpetrators, apology UN, ICC International Criminal Court, International Court of Justice, some of the institutions that employ transitional justice. Political regime change, from one to another, can be after political upheavals etc. Major political regime change. Reckoning with the past, looking at the past to reconstruct future. Seen as a democratization. When transitional justice became a global meaning of peace making, democratization etc. Timewise it refers to 1990s onwards, dealing with the civil war, with the aim of democratization process of society, to deal with the authoritarian past violence. Has a huge mission. Truth commissions in Peru, Chile, Argentina. Lots of confessions perpetrators, televising to create a reperation between the society and the authoritarian government, apologizing etc throguh the truth commissions. Massive purges and bans, that belonged to the the former regime. Legal Procedures: Criminal Trials: For prosecuting individuals responsible for war crimes, genocide, and crimes against humanity (e.g., Nuremberg Trials, International Criminal Tribunal for the Former Yugoslavia). Truth Commissions: Non-judicial bodies that investigate and document past abuses (e.g., South Africa’s Truth and Reconciliation Commission). Reparations: Material and symbolic compensation to victims (e.g., Germany’s reparations to Holocaust survivors). Discourses: TJ often invokes human rights language, emphasizing justice, truth, reconciliation, and accountability. Narratives of victimhood and healing play a central role in framing TJ efforts. Practices: Memorialization and commemoration (e.g., Holocaust museums, genocide memorials). Educational reforms to teach historical truth. Institutional reforms, including vetting and removing individuals complicit in abuses. Durkheim for TJ: Restoring peace and social harmony, through law, to heal the wounds and create social cohesion. Memorialization could help heal the wounds, law has a moral social function. Marx could say that it may legitimize existing hierarchies, since it is through international court systems, relations between east and the west etc. whose crimes and whose lives matter, who judges whom on what account. class is important again. The law can never deliver human emancipation, it can never be revolutionary. Key Instances and Concepts Broadly conceived, Transitional Justice refers to the set of practices, discourses, and institutions used for pursuing justice, peace-making, conflict-resolution, truth-making, reconciliation, and social transformation that are employed in the context of drastic political/regime change. Legal and quasi-legal institutions including truth commissions and memory and archival institutions and criminal trials/prosecutions (domestic and international) - The Second World War Nuremberg and Tokyo tribunals: Nazi crimes and crimes against humanity) and the 1980s onwards (in the South and East). Eurocentrism? The West/North, East/South... - Two concepts: Transition and Justice. TJ is not justice in transition; but justice pursued during drastic political change (revolution, regime change process. Often tasked to lead and construct or facilitate the transition to democracy and reckon with mass violence - Key distinctions: War and peace (exception and normal); authoritarianism and democracy; barbarism and progress/civilization There is a certain Eurocentrism in the construction of TJ, it addresses the war in the non western countries, but forces these countries to catch up with the western liberal democracy model, they have to aspire for it. Having to transition to this model. Transition to where? Very theological, from point A to point B. Almost like a civilizing mission, linear temporality. Individual victims and individual perpetrators. Liberal domination in TJ. “Let’s sober up”, a reconciliatory model, instead of a revolution. Revolution is seen as violent and unnecessary. War is seen as exceptional, peace as law, They are seen as binaries, illiberal regimes have to be corrected to liberal ones. Western concept of democracy. You can see traces of this distinction clearly in the Nuremberg Trials. The Nuremberg Trials (1945) 1) What are the main goals of this trial? 2) Why do they/the Allied forces pick the city of Nuremberg to hold this international trial? 3) What are the legal charges against Nazi criminals? War of aggression, crime against humanity, 4) What are the major challenges and dilemmas of the Nuremberg trials? 5) What is the historical importance of the Nuremberg trials? Documentary: "Nuremberg trials - the Third Reich in the dock" Comes with a war crime framework starts as a declaration of war, so it limits the scope of the court to that time period. So it excludes the 1930s, all other racist, segregation laws that were institutionally organized against minorities. It only sees the war, but not the processes and institutions that led to that law, just looks at the event of the war. Why? What is the purpose of doing that? —> Avoiding Allied Complicity: Highlighting prewar institutionalized racism could have opened the Allies to scrutiny for their own discriminatory practices, such as racial segregation in the U.S., colonial exploitation by European powers, or the Soviet Union’s forced relocations and purges. —> Wartime Atrocities as Tangible Proof: The Holocaust, war crimes, and crimes against humanity provided undeniable, documented atrocities that could be used as evidence. Institutional racism and prewar segregation laws, while critical, were less directly shocking or “visible” as criminal acts to a global audience. (Key distinction and the binary between war and peace) This creates competitive victimhood claims, pitting different levels of crimes against each other. Aim was to denounce an “order of barbarity” Hierarchical order of the crimes and people The Eichmann Trial (1961) - What is the importance of this trial? What is the indictment/charge against Eichmann? - What is the legacy of the Eichmann trial? (the question of first things…) Since it was judged by the Israeli court sanctifying the Israeli state, justifying its presence through the court by linking this case and doing it through the trial, nation- state making through the trial. In the Nuremberg trial, the horror of the genocidal crime of the nazi officers were shown, the eichmann trial had nothing to watch. No partiality in the Nuremberg trials, transparent. The Eichmann trial had victims testimonies and survivors., which Arendt hated, very emotionally based, creating an archive of the nation based on victimhood. The entire process itself was very theatrical which was important for the ıSRAEL prosecutor, which Arendt said was “a show trial” TRİED TO CREATE A REPERTOIRE OF EMOTİONS AND ISRAEL SAYING I'M HERE TO PROTECT YOU. Creating a cult of victimhood which will then give them the moral ability to instigate violence. Arendt was labeled as a self hating jew because she challenged the Eichmann Trial. She was seen as a traitor to the Israel state. An attempt to create a new Jewish state “citizen soldier mythology” Reconstruction of the “weak Jew” banality of evil not insane, without a personal motive, but ordinary, but arendt is not excusing, without a personal motive … Human Rights and Domination - Nicola Perugini and Neve Gordon, The Human Right to Dominate (1-25; 71-100)  - “On international law and Gaza: Critical Reflections,” London Review of International Law, July 2024 Major Theoretical-Political Intervention - What is the relationship between human rights and violence (and domination)? What is the “hydraulic model of human rights”? What is the problem of the authors with this understanding of human rights? (page 13) - What is it that makes human rights so malleable and useful for different political groups/agendas? - What is the role/location of the state in human rights discourse and practice? - How does the authors’ critical account of human rights differ from well-known criticisms of human rights as a tool of Western colonial and imperialist domination? Human shield or the Human Right to Kill - What is a human shield? What is its importance in the context of human rights? How is it tied to the sovereign right to kill? - How does it play out in the conflict between Israeli state and Palestinian organizations and militants? Examples. - What does the politics of violence around the notion of human shield say about colonial legacies of human rights? - Discussion about human rights and international law and court of justice The state plays a paradoxical role in human rights: it is both the primary violator of rights and their protector. This duality is institutionalized in the post WWII human rights regime, where the state’s sovereignty is reinforced. International mechanisms like the ICC rely on state consent for enforcement, allowing states to evade accountability under the guise of sovereignty. This shows how human rights often bolster state authority by legitimizing its role as the enforcer of rights. For example, Israel invokes human rights and IHL to rationalize military violence, positioning itself as a moral actor despite the disproportionate harm they inflicted during 2014 Gaza War. So we can say that human rights are employed by the state to justify, rationalize and even civilize forms of killing and domination. To me, it almost feels like states are cherry-picking human rights rhetoric, using it however it suits them to justify military interventions or other forms of violence, all while framing these actions as necessary to protect rights. We've seen this in campaigns that tie military occupations to promoting freedom, like NATO’s involvement in Afghanistan under the guise of advancing women's rights. The concept of human shielding further shows how human rights intersect with war-making. It refers to using civilians to deter attacks, which is prohibited under IHL. However, accusations of human shielding are often weaponized to justify civilian casualties in asymmetric warfare. During the 2014 Gaza War, Israel accused Hamas of using civilians as shields, reframing populated areas as legitimate targets. This shifted blame for civilian deaths onto Hamas, transforming victims into “complicit” actors and rationalizing their deaths as collateral damage. Technologically advanced militaries like Israel’s, use precision weapons and humanitarian rhetoric to appear ethical, while groups like Hamas are condemned for endangering civilians. Human rights organizations often critique the use of “indiscriminate weapons” by groups like Hamas while excusing the greater civilian toll caused by state actors using “precise weapons.” This hierarchy of victimhood dehumanizes those killed by powerful states, portraying their deaths as “unfortunate but lawful”. Kennedy’s quote, “transforming violence into something you can proudly stand behind” captures this dynamic perfectly.