Seite 69 [69]
OCR
INTENT TO DO RIGHT? Third example is taken from reports of executions ordered by Taliban kangaroo courts in Afghanistan. In 2019, for example, news reported that in an area of Afghanistan controlled by Taliban two men were accused of robbery and extortion, and in a sham trial shot to death. Afghanistan Independent Human Rights Commission noted that such executions are a part of a recurring pattern, constitute a breach of Afghan law, and are conducted without fair trial.’ In each such example of collective wrongdoing perpetrators do not consider their actions to be wrong (and at least in cases of communist judge and Taliban executioner neither unlawful) and share this interpretation with other participants of criminal practice. It may be objected that neither Taliban executioner, nor communist judge, nor Auschwitz bookkeeper consider their motivation as a legal obligation, because no concept of law could be extended to cover such sickening practices. Or that neither of them perceives their actions as being pursuant to law in any usual sense of the word. This is only partly true, that is in part that a conception of law motivating crimes against humanity in these cases may well fall outside conventional one to the point of being unrecognizable. Consider, for example, Krylenko, a prosecutor and judge, and one of the organizers of Soviet mass repression of political enemies, explaining the role of revolutionary tribunals:® “The Tribunal is not a court in which legal subtleties and intricacies should be revived; The Tribunal is an instrument of political struggle against counter-revolution and against any counter-revolutionary actions. In the Tribunal we are creating a new law, because in the bourgeois codes it is not possible to find a definition of those crimes that are committed against the revolution. We are creating new law and new ethical norms, and our norms are not the ones that guided the representatives of the previous government.” Perhaps a similar argument could be made by Taliban executioner, communist judge, and Auschwitz bookkeeper to the extent that the law enforced by them is new (or old) law and has little to do with agreed criteria for law. I postpone implications of ‘semantic sting” argument intrinsic to such objection to one the following sections. 7 SalaamTimes, Execution of civilians by Taliban kangaroo court outrages Afghans, SalaamTimes (09 May 2019), https://afghanistan.asia-news.com/en_GB/articles/cnmi_st/ features/2019/05/09/feature-02. See also e.g., SalaamTimes, Taliban brutality takes center stage with couple’s execution in Ghor, SalaamTimes (28 April 2020), https://afghanistan. asia-news.com/en_GB/articles/cnmi_st/features/2020/04/28/feature-02. 8 Nikolaj Krylenko, Za pjat’ let 1918 — 1922 gg. Obvinitel’nye rechi po naibolee krupnym protsessam, zaslushannym v Moskovskom i Verhovnom revoljucionnyh tribunalah, Petrograd, Gosizdat, 1923, 22. ° See Ronald Dworkin, Law’s Empire, Cambridge, MA, Belknap Press, 1986, 45. + 67 +
