At a meeting point of science and fiction, Jo Bluen performs a Nuremberg trial for crimes against humanity. With a view to reparative futurities in the present of the abolition of the global carceral police and the settler colonial international, she traces the expropriation of knowledge, land, memory, and humanity from the vantage point of the tightrope walker standing still between Nuremberg and The Hague.
At the Einzatsgruppen trial at Nuremberg — that which simultaneously birthed a narrative of the Shoah and heralded the Jewish expropriation and restitution program, the most extensive reparations program in history, predicated on the rendering of Jews as the ultimate victims, rendering antisemitism, not anti-Blackness, as the constitutive ordering of colonial modernity, which settled Palestine, and authored a legal order of crimes against humanity — not a single witness was called to the stand. When asked why the Jews across Eastern Europe were killed, almost every Nazi defendant said it was because they were partisans, and their revolt threatened the SS enterprise across Eastern Europe.
Wild shtetl femmes burned down Nazi installations, flirted with commanders, stole their blueprints before shooting them, and wore elaborate coats. Their anti-colonial revolt, like all anti-colonial revolt, was silenced and criminalized by the Nuremberg archive, sequestered by Holocaust exceptionalism so that global revolt could be rendered criminal by the same legal order, ossified to author a regime that articulated Judaism as an interpolation into, following Cheryl Harris, “whiteness as property.”
My grandmother came from Warsaw to South Africa, where she, we, had become white by the same forces that made her Jewish and unhuman in Europe. At present, I write from London, where I’ve written from for too long: a disavowed settler metropole of South Africa, like The Hague, which, as an order of international law, might also be Nuremberg, a disavowed settler metropole of Israel. I have spent a lot of time in the archives of international criminal law, as I have in those of The Funambulist, and I wonder what I might have written, at the interstices of my liminalities across time and space, at other moments like these, around 1948, or 1994, as the global settler colonial-authored order threatened collapse. Indeed, Nuremberg’s origin was re-enfleshed in The Hague precisely at the moment white impunity was guaranteed by the South African Truth and Reconciliation Commission. It occurred to me as I wrote into these circulations where origin story of continuous present renders itself as history, that perhaps I still might try.
I have been thinking, with these circulations, about intellectual property law, enraged and immobilized by the ravages of vaccine apartheid made possible by this legal regime’s patents, a figment of the intellectual property lawyer’s imagination, a nuke for the global pharmaceutical industry’s profit margin. How many of the over four million deaths might have been prevented by an early waiving of the vaccine patent as current vaccine access and distribution will, with this legal fiction rendered as deathly science, optimistically see much of Africa vaccinated in or after 2022 while the United States struggles to administer its current excess supply? At what point might we call this genocidal intent?
I am careful with quantifications and have no interest in analogy, so as the pandemic’s death toll climbs, I am reminded of the fact that the word “holocaust” was first used the first time “crimes against humanity” was used: in reference to the atrocities in King Léopold’s regime in Congo Free State. Both “holocaust” and “crime against humanity” were expropriated, as are their unmourned dead and the lands they serve, steal, encamp. The words are intellectual property trademarks certified in the courtrooms of Nuremberg.
Very little of either the legal and intellectual orders of crimes against humanity and intellectual property law exist beyond the pages written by lawyers and academics; they are almost devoid of sense of place. The words “Nuremberg to The Hague” appear at the entrance to every legal institution in The Hague, and animate an origin story of intrigue. I have never seen a map between the two cities. According to Google Maps, there are 680 km (423 miles) between the two, but according to the same the mapping between The Hague and Palestine, where the ICC currently has an open investigation, “Google maps can’t find Palestine.” Both colonial cartographies.
Nuremberg and The Hague appear almost temporally, but have a quality of aeriality, which allows zealous fiction to read as science, the trials a new testament, perhaps, an axis heralding a new era of humanity, an expropriation of what it means to be human. Perhaps the best articulation of this distance is in the title of international lawyer and academic Philippe Sands’ Nuremberg to The Hague: The Future of International Justice. The origin story is read as history, and the future is guaranteed as a relation between places.
Part of this quality of evacuated space and temporal scale is made possible by frequency of presence of Janus-faced men, all of us here, and Janus-faced words. Indeed, most within the world of international law, work between different spaces: the academy, the courtroom, the government. The authors of various regimes of culture war, too, live between the places and properties of the Nuremberg archive.
Probed by Katherine McKittrick’s invitation to “[share] ideas in an unkind world,” the threads between words, property, knowledge, orders of crime against humanity, and trademarks seem to lead me to Janus-faced words, words that contain themselves and their multiples, and what they might engender for reparative futurities. These are, in my mind, a series of loose threads, like those of the tightrope: elastic with movement, expropriated and awaiting expropriation.
The word expropriation is one such word. “The action of dispossessing someone of property” means different things in different mouths, potentially reparative of the harm it contains, as it does, perhaps, the expropriation of the human itself. Similarly, the aeriality of the archive is genocidal movement without steps: an aeronautical frequency of surveillance, hands concealed. The aeriality of these pages, The Funambulist, which means tightrope walker, invites an intimacy with place and human relation.
It is in this spirit that, in the words to follow, I perform a Nuremberg trial. This trial is more about error than order, an attempt. It’s wildly unreasonable and full of doubt. Its rules of procedure and evidence best expressed through the shtetl grammars of queer Yiddishkeit, most alive at its most dead: animated by revolt and mazel tov cocktails, articulated in relation to shtetl that no longer exists but absolutely and always exists and is alive with possibilities expropriated from state and reproductive settler futurities of cisheteropatriarchal coloniality.
Manuzkriptzentrale is this most recent Nuremberg trial that will have taken place over the course of a year of rupture. During this time, the actors have been walking on a tightrope between Nuremberg and The Hague, the past and the present-future, which is, following scholars Zubairu Wai and V.Y. Mudimbe, still a colonial library. It is living library, pumping with adrenaline and nerves, hands out on either side to steady itself. The defendant is the prosecutor and the prosecutor is the defendant, and both murdered the partisan. Like many trials in the Nuremberg archive, this is a trial for crimes against humanity, like all, at issue is the act of expropriation.
The trial — also referred to as the knowledge juridification case or the intellectual property case — concerns the relationships between the carceral archives of international law, the Nuremberg archives of unarchived colonial genocide, and the ordering of knowledge it exists within. All move between and are animated by carcerality, racial capitalism, and various regimes of police as singular.
It attempts, following legal theorist Petero Kalulé and design theorist James Trafford’s work on police as singular, to consider the possibilities of abolition beyond the possible, towards the expropriation of the trademarks that govern this order with a view towards reparative futurities. The prosecution hopes not to replicate what Ruha Benjamin might describe as a carceral archive; the trial is a Janus-faced attempt to think of expropriation through both reparative futurities and historically expropriated knowledge and resources. The knowledge of expropriation is itself an archival interpellation into colonial mastery. In Potential History: Unlearning Imperialism, Ariella Aïsha Azoulay reminds us that “collecting is not separate from other foundational practices, procedures, institutions, concepts, and categories operative in the field of art shaped through imperialism.” The trial, as messily as it is imagined, is a challenging act of care, but as a formalizing act of knowledge production, always inextricable from violence
It is an attempt at expropriation, just as Nuremberg’s juridical exceptionalization of Nazi crimes was an expropriation establishing a colonial legal-social order containing an anti-Black exception to genocide: where colonial modernity is built upon and sustained by an anti-Black colonial/carceral order and the murder of Black people neither constitutes crime nor crisis. This deeply occupational mode of archival settlement has produced fictive hierarchies of and within white supremacy, falsely asserting antisemitism as a bigotry beyond white supremacy and a superior harm rather than as constitutive of the racial colonial order that also produces anti-Blackness, Indigenous genocide, and Zionist occupation. Nuremberg’s own certainty had not shifted since 1492: it is one articulated in what is said and unsaid in the pages of the Nuremberg archive and the 500 years of colonial genocide and enslavement. Césaire would write, that what the Christian bourgeois humanist could forgive “Hitler for is not the crime in itself, the crime against man, it is not the humiliation of man as such, it is the crime against the white man and the fact that he applied to Europe colonialist procedures.” At each moment of rupture, this order reconstitutes itself, a naked emperor in search of new clothes.
This time, the Nuremberg order is up to something again, working between knowledge and property, museum and murder, with the aesthetics of diversity and inclusion, the liberal grammar of soul-searching for a certainty. The fabrication of quest for certainty is a cartographic performance, an ethical reckoning with and remapping of previously charted waters and an eagerness to replicate this cartographic certainty — a confidence in the perpetuity of legal universalities divorced from racial capitalism and coloniality — onto new ones. As Oumar Ba writes, this liberal universe “is a place of staged performance where various actors deploy their political narratives and pursue their political interests.” Before the climate crisis caught the world on fire and a pandemic grounded our flights, crisis, contradiction, and chaos were always a critical part of the performance alongside articulations of truth in whose performance the contradictions of legal precedent and political action only bolstered the sanctity of the illogic.
Sequestered Liminalities ///
The prosecution had initially limited its defendant register to all Janus-faced men who appeared in at least two separate locations related to the Nuremberg archive. At the fact-finding stage, the prosecution gathered an almost uncountable number of suspects at which point it evaluated there was no innocents and there was insufficient court space. Among the high profile defendants, were William Beveridge, Jan Smuts, Raphael Lemkin, and Mendell Kaplan, but the nearest available is the author.
If the prosecution redeploys the Nuremberg trials’ modalities of individualized responsibility, this is secondary to other objectives, in keeping with the Nuremberg tradition where individualization is a smokescreen for expropriation. At moments of historical rupture like this, whiteness as a political project has been re-enfleshed by fictive differentials of white vulnerability and culpability, each returning from their points of distinction at the moment of reconstitution of the settler colonial international order, while equally sequestering moments where the order of man as property ruptures. It was the visualizations of ruptures of whiteness, liminalities sequestered and sequestrated, in the Boer War’s concentration camps, like those in Auschwitz, that led to articulations of white crisis that heralded new orders of anti-blackness and settler colonial renewalism in movement of the immovable property of chaos.
Some here thought of Nuremberg’s promise of criminalization and punishment as a kind of address of antisemitism as genocide prevention, but that is peripheral to how Holocaust exceptionalism, as the foundational anti-genocide norm, sediments a global order of colonial modernity. Some of them came here to confront contradictions between an order of justice whose originary moment in 1948 was contemporaneous with the establishment of settler apartheid regimes in South Africa and Israel. Legal theorist Tshepo Madlingozi describes transitional justice as “a central discourse, a central practice that affects all of us in post-colonial countries. All of us are engaging it without knowing it.”
They have performed this journey many times, the fossil poetry of their flight emissions fabricating a spatial archive whose circularities of capital, guilt, and innocence, have been cemented by carceral regimes of intellectual property, whose fancy footwork is a fourth wall that squares a swastika with sequestered liminalities, expropriated kinships, invisibilizing settlement with invisibilized hands, and careful movement of footnotes in flight.
Aerial Kinship, Ghost Flight ///
There is a documentary that traces the legal architects of genocide and war crimes entitled Watchers of the Sky. Aeriality becomes a grammar of surveillance whose cartographic function, like its certainties, are renewed but unchanged at every iteration. It is a mechanism by which, following Joy James, “empire compensates you for quelling rebellions or translating them into performatives or narratives that say there is a war as an abstraction, but not a war as a concrete phenomenon.” It is an aeriality that upholds the binary regime of guilt and innocence and judicial logics are permanently out of view but also hidden in plain sight on the bench erected in The Hague to honoring the despatialized journey from Nuremberg to The Hague. Its inscription reads: “Law not war.” It is an aeriality whose distance from the everyday provides cover for the upholding of a global military-industrial complex and carceral order that represents itself as panacea to that on which it depends and upholds.
It is an aeriality whose archival regime is governed by surveillance flight without movement. Movement — the drone, and most recently, the citizen war crimes investigator and the trend of “open source investigation” — promises justice in exchange for facticity of image. The juridical and academic gown is interchangeable, woven by guilty birds. The intellectual property of being the guarantor of humanity against crimes is itself a laissez-passer passport, for the academic asking “victims” the same questions her colleague did for publications sequestered by expensive border walls of journals, for the investigator never to return to victims of trials in the event of an acquittal, the NGO worker. The companies that verify the adequacy of citizen war crimes investigators’ photographic evidence of the unevidenceable for criminal prosecution and fair trial evaluate do so with software by tech companies that cooperate with border control regimes, and manage legal databases required for academics to write critical rejections of carceral borders and hefty distinctions between oneself and the other academics in the name of human rights or criticality incorporated. They are, busy and innocented in business of justice, perhaps the justice league equivalent of, what medical anthropologist Adia Benton describes as, “the white American businesswoman, for example, but also the white women epidemiologists! — [who] pose a significant threat to global social order, even as they engage in epidemic heroics to preserve it.”
From the vantage point of the tightrope, rather than the plane, the spatial architecture of this knowledge regime emerges blurrily as an archival concentration camp on epistemic terra nullius. Consistent with legal orders throughout colonial modernity, this deliberately emptied space serves the relentless drives of capital accumulation through which an anti-Black order of the human continuously re-enfleshes Darwinian, Malthusian, and Kantian logics of racial dehumanization. It is the ordering of discipline for empire, which have always served genocidal projects of colonial modernity articulated as the eugenic science of the human.
Expropriated Futurities ///
There are very few struggles the house has not stolen, and, its emergence after World War II and resurgence only after white impunity was guaranteed by the Truth and Reconciliation Commission in South Africa has caused it to return to its old Darwinian maps in panic in the context of the current moment’s revolt. Its greatest feat has been to expropriate language and time so that it perpetually authors the futurity of the settler colonial international as inevitable by articulating a future in which the present is merely a footnote on the hallowed archive of the past. In so doing, it has carefully usurped the grammars of futurity that Zoé Samudzi notes are demanded for the fabrication of a “world that accommodates a reparation — a wound remedy demanded by an aggrieved party — [which] is not a world that presently exists, [but] has to be created.” Indeed, the authors of this archive would argue that the greatest reparations project in the world already exists, whereby the state of Israel was manufactured on the expropriation of the unmourned dead of the Holocaust. Indeed, the International Holocaust Remembrance Act is quick to point out that antisemitism must be authored in relation to Jews and/or their property. This was never inevitable, but authored.
The Nuremberg archive loots across non-linear temporalities and dynamic imaginaries of freedom, reifying them as already existent for the human and, following Wynter’s words, its “overrepresent[ation] as Man.” Jewish liminality has always served as a foil for policing the boundaries of whiteness. Its ossification as property relation is a violent refusal of the grammars for eulogy, a project in the service of whiteness, not a validation of Judaism and certainly not humanity. The maps that once authored inevitability, here are made in a petri dish. For the last year, the pandemic has grounded some of the flights of genocidal fright.
As is customary, the prosecutor burnt the evidence in a fire in a someone else started.
Right now, just standing still on a tightrope, hands out for scale, still, open to expropriated liminalities, here.
Of course, you can dance at a fire, and you can burn an archive, but you cannot archive a dance or a burn.
“Klieg, Klieg, Klieg — du bist a Nar. You are smart, smart, smart — but you are not so smart!” ■