25 February 2022

A Terrible Crime

A terrible crime has happened. A rape in the middle of the town square. We all stood around, we all watched, we all heard the victim scream. We could not, did not want to, did not dare, at any rate did not prevent it: it has happened.

The crime cannot be justified. What the perpetrator claims: that his deed was necessary, that the victim forced him etc., cannot convince anyone. Nor is it even supposed to. It was part of the deed to demonstrate that the perpetrator is still capable and powerful enough to rape others. He wants to demonstrate this especially to those who prohibit and discourage rape and provide mutual defense and protection against it among themselves. They have closed in on him in recent years, it is true, and have made the remaining territory of rapeability smaller and smaller. And he has lost much of his clout over them recently: Just a few years ago, he still danced at their weddings, and his friends had prospects for or already held the most important offices in their governments. No more. The victim had declared her intent to join them as well, thus escaping his sway forever. This has hurt him, cornered him, offended his manly honour. What does that justify? Nothing.

The crime cannot be excused. Whatever the victim’s lifestyle was, whether she used date the perpetrator long ago, whether her new boyfriend has committed rapes of his own: all this is utterly irrelevant. A terrible crime has been committed, an unspeakably horrible act of violence that haunts us in our dreams. We do not owe it to the victim alone, or even primarily, to venge it. We owe it to ourselves.

If there were a state powerful enough and legally competent to do it, we could point to its prosecutors, courts and prisons whose job it is to seek, mete out and execute justice. But there isn’t.

We can point to no one at all. This is our business. There he stands, the criminal. Peaceless, outlawed, expulsed from the community. And if our Federal Chancellor keeps telling us in his thin Hanseatic voice about which policy concerns he thinks are making unwise the complete, immediate and strictly enforced termination of all political and business relations with the criminal, then you can literally hear his authority leaking away from him like water out of a rusty bucket.

International law, it is often said, has lost its normative power. The opposite is true. The violated norm of prohibition of force has tremendous power. Rarely could this power be felt as immediately, as physically as now. It shakes us to the core. We feel it in our souls, in our limbs, in our dreams, yesterday, today, tomorrow and for a long time to come.

It will not abate. It may be repressed after a while, but it will not go away. This deed must be atoned for. Otherwise the Furies will come. And they will come after us, too.

The week on Verfassungsblog

Meanwhile, the organizations and institutions of international law are positioning themselves. ANNE PETERS, on behalf of the German Society for International Law, states, “We insist that the language of public international law is being deliberately misused by Russia in order to advance legal allegations which are juridically untenable. We call upon all states and international actors to expose these sham arguments.” The Council of Europe, so far always at the forefront of Russia appeasement, is now apparently actually preparing to chuck Russia out. CAROLINE VON GALL thinks this step is overdue.

One of the things that changed to the worse yesterday: That Poland is no longer a state under the rule of law is likely to move down considerably the EU priority list, I should think. SONJA PRIEBUS, in the wake of the ECJ’s ruling on the conditionality mechanism, discusses the fact that even without that, the Commission’s eagerness to take the necessary steps left much to be desired. PIETRO FARAGUNA and TÍMEA DRINÓCZI explore what the ECJ is aiming at with its talk of European constitutional identity. FEBE INGHELBRECHT analyzes the next ECJ ruling from this week on the question of whether Polish EU arrest warrants must continue to be subject to a two-step test before the judiciary of other member states may refuse to execute them.

In the United Kingdom, the government seeks control over the Electoral Commission. JACOB EISLER places these plans in the context of the Johnson government’s policy and explains why such a politicization of election supervision would be a fatal step.

In India, press freedom is coming under increasing pressure. MEDHA SRIVASTAVA looks at the role of the Sedition Act and the Supreme Court in this.

In Canada, Prime Minister Justin Trudeau has declared a state of emergency over blockades by Trumpist truckers. CLEMENS ARZT is on the ground for a research visit and reports on the legal and political background.

Ecuador’s Constitutional Court recently ruled on constitutional rights of animals in general and a monkey in particular. ANDREAS GUTMANN reports on this ruling, which makes an important contribution to the further development of the rights of nature enshrined in the Ecuadorian Constitution.

The EU Commission finally unveiled its draft directive on corporate due diligence in the supply chain this week. DANIEL BERTRAM analyzes the draft in terms of its environmental aspects and addresses the question of whether it has more to offer than pure greenwashing. KLAAS ELLER and IOANNIS KAMPOURAKIS have previously summarized the expectations on the draft.

Can a British citizen who has lived in France for decades retain Union citizenship despite Brexit? That was the question Advocate General Collins at the ECJ had to answer, and the result came to the surprise no one: of course not. Nevertheless, DIMITRY VLADIMIROVICH KOCHENOV and MARTIN VAN DEN BRINK shed light on what makes the opinion interesting.

On the EU’s Digital Services Act (DSA), we had a small series of very commendable posts this week: the DSA aims to require digital platform giants to make their internal data transparently available for research and reporting. BEN WAGNER, MARTIN HUSOVEC, ĽUBOŠ KUKLIŠ and ELIŠKA PÍRKOVÁ argue that this will require a European ‘auditing intermediary’ to verify the accuracy of the data, as platforms have often tried to hide or distort data sets in the past. DAPHNE KELLER writes about the DSA’s broad procedural requirements for how digital platforms – large and small – should handle content moderation, and the fine line between requirements that actually serve to protect fundamental rights and those where the benefits no longer outweigh the costs. And RACHEL GRIFFIN criticizes the DSA, like many other acts of European platform regulation in recent years, for being informed almost exclusively by the normative framework of fundamental rights protection, despite its proven inability to adequately address collective, structural problems.

The constitutional fidelity of civil servants is a question of inner attitude. How do you determine this? ANDREAS NITSCHKE examines how to distinguish racist and right-wing extremist statements from mere “tasteless jokes”.

Our blog symposium on 9/11 and public discourse extends to include a contribution on the impact of the terrorist attacks on freedom of expression in France by CHARLES GIRARD and PIERRE AURIEL.

In her contribution to the blog symposium Restoring Constitutionalism, KRISZTA KOVÁCS addresses the substantive difficulties of restoring the constitution after overcoming an authoritarian regime.

An as a part of our Freedom of Expression in the Olympic Movement blog symposium, CEM ABANAZIR examines the role of the Court of Arbitration in Sports (CAS).

That’s it for this week. All the best to you, stay healthy and safe, pray, donate and hope for Ukraine and the Ukrainians, and don’t lose heart. Law rules!

Max Steinbeis

SUGGESTED CITATION  Steinbeis, Maximilian: A Terrible Crime, VerfBlog, 2022/2/25, https://verfassungsblog.de/a-terrible-crime/, DOI: 10.17176/20220226-001036-0.

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