INTERNATIONAL CRIMINAL LAW AND PHILOSOPHY

That is, international crimes proper can be distinguished fromcrimes against states only because the former are properly subject to universaljurisdiction whereas the latter are subject t

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INTERNATIONAL CRIMINAL LAW AND PHILOSOPHY

International Criminal Law and Philosophy is the first anthology to bring together

legal and philosophical theorists to examine the normative and conceptual dations of international criminal law In particular, through these essays, the inter-national group of authors addresses questions of state sovereignty; of groups, ratherthan individuals, as perpetrators and victims of international crimes; of interna-tional criminal law and the promotion of human rights and social justice; and ofwhat comes after international criminal prosecutions, namely, punishment andreconciliation International criminal law is still an emerging field and, as it con-tinues to develop, the elucidation of clear, consistent theoretical groundings for itspractices will be crucial The questions raised and issues addressed by the essays

foun-in this volume will contribute to this important endeavor

Larry May is W Alton Jones Professor of Philosophy and Professor of Law atVanderbilt University and Professorial Fellow at the Centre for Applied Philosophyand Public Ethics at Charles Sturt University in Canberra He is the author or

editor of more than 70 articles and more than 20 books, including The Morality of

War; Crimes Against Humanity: A Normative Account, which won a best book prize

from the North American Society for Social Philosophy and an honorable mention

from the American Society of International Law; War Crimes and Just War, which

won the Frank Chapman Sharp Prize for best book on the philosophy of war

and peace from the American Philosophical Association; Aggression and Crimes

Against Peace, which won a best book prize from the International Association of

Penal Law; and Genocide: A Normative Account.

Zachary Hoskins is a doctoral candidate at Washington University in St Louis

He is the author of “On Highest Authority: Do Religious Reasons Have a Place in

Public Policy Debates?” published in Social Theory and Practice (July 2009).

ASIL Studies in International Legal Theory

General Editors:

Mortimer N S Sellers, University of Maryland

Elizabeth Andersen, American Society of International Law

The purpose of the ASIL Studies in International Legal Theory series is to clarify

and improve the theoretical foundations of international law Too often the gressive development and implementation of international law have foundered onconfusion about first principles This series will raise the level of public and schol-arly discussion about the structure and purposes of the world legal order and howbest to achieve global justice through law

pro-The idea for this series grows out of the International Legal pro-Theory project

of the American Society of International Law The book series ASIL Studies in International Legal Theory will deepen this exchange by publishing scholarly

monographs and edited volumes of essays considering subjects in internationallegal theory

International Criminal Law and Philosophy

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Introduction 1

Larry May and Zachary Hoskins

part one sovereignty and universal jurisdiction

1 International Crimes and Universal Jurisdiction 15

Win-chiat Lee

2 State Sovereignty as an Obstacle to International Criminal Law 39

Kristen Hessler

3 International Criminal Courts, the Rule of Law, and the

Prevention of Harm: Building Justice in Times of Injustice 58

Leslie P Francis and John G Francis

part two culture, groups, and corporations

4 Criminalizing Culture 75

Helen Stacy

5 Identifying Groups in Genocide Cases 91

Larry May

6 Prosecuting Corporations for International Crimes:

The Role for Domestic Criminal Law 108

part four punishment and reconciliation

10 The Justification of Punishment in the International Context 201

Deirdre Golash

11 Political Reconciliation and International Criminal Trials 224

Colleen Murphy

Anat Biletzki, Philosophy, Tel Aviv University

John G Francis, Political Science, University of Utah

Leslie P Francis, Law/Philosophy, University of Utah

Deirdre Golash, Criminal Justice, American University

Kristen Hessler, Philosophy, University at Albany, SUNY

Zachary Hoskins, Philosophy, Washington University in St Louis

Joanna Kyriakakis, Law, Monash University

Douglas Lackey, Philosophy, Baruch College, and the Graduate

Center, CUNY

Win-chiat Lee, Philosophy, Wake Forest University

Larry May, Philosophy, Vanderbilt University, and Centre for Applied

Philosophy and Public Ethics

Colleen Murphy, Philosophy, Texas A&M University

Helen Stacy, Law, Stanford University

Steve Viner, Philosophy, Middlebury College

ix

Larry May and Zachary Hoskins

This volume brings together some of the best recent work by philosophersand legal theorists on the conceptual and normative grounding of interna-tional criminal law Philosophers and other theorists are only just beginning

to write about the emerging field of international criminal law Internationallaw has taken a significant turn in recent years Rather than being primarilyconcerned with the relations of states, one significant branch of internationallaw – namely, international criminal law – now concerns the relations of indi-viduals, specifically, the responsibility of individuals for mass atrocities As withany such change, there are many questions and problems that arise In ourbook, we begin with considerations of the conflict between state sovereigntyand universal jurisdiction; examine thorny issues raised when the victims orthe perpetrators of international crimes are groups or corporations; proceedthrough various specific questions related to justice and human rights; andconclude with chapters on how international criminal trials should be seen interms of theories of punishment and reconciliation Throughout, these chap-ters relate thinking in political philosophy, ethics, and jurisprudence to casesand issues in the practice of international criminal law

The collection of authors and chapters is somewhat distinctive More thanhalf of the authors have law degrees and all of them have, or soon will receive,doctorates, mostly in philosophy The authors are primarily from North America,although the collection also includes scholars from Australia and Israel; all

of the authors have previously published in the fields of jurisprudence andpolitical philosophy The chapters were all initially written for various work-shops sponsored by the Internationale Vereinigung f ¨ur Rechts- und Sozial-philosophie (IVR) and reflect the broadly interdisciplinary nature of thoseconferences The authors have had occasion to interact with each other, mak-ing the volume somewhat of a dialogue about these important issues Mostsignificantly, this is the first anthology of works by philosophers and legal

2 Larry May and Zachary Hoskins

scholars on the normative and conceptual grounds of international criminallaw

The chapters here are organized into four broad themes First, sovereigntyhas been a subject of political philosophy since at least the writings of ThomasHobbes Hobbes actually did consider some international issues, althoughnot in the detail that his contemporary Hugo Grotius did Both philosophersrecognized that the idea of state sovereignty is in conflict with the idea thatall people in the world have rights The problem is that to protect rights itsometimes is necessary to confront what sovereigns do to people in neighboringstates, or even what states do to their own people To confront such abuse ofrights, seemingly, sovereignty will have to be abrogated If rights protectionrequires universal jurisdiction, then such an idea will be in direct conflictwith the powerful idea of state sovereignty At least in part, this is becauseinternational justice issues are played out in the sphere of imperfect justice.International criminal courts and tribunals have recognized this fact but havenot explored the ensuing conflicts in the conceptual and normative termsoffered in the chapters in our first section

Second, there are quite controversial questions of who should be the subject

of international criminal law This field is set up to deal with individual humanpersons, as is true of all subfields of criminal law, but there are interesting the-oretical questions about whether corporations – that is, individual nonhumanpersons – should be subject to international criminal law as well Much of thisfield is focused on mass atrocity cases, calling into question whether it is groupsmore than individuals, both as victims and as perpetrators, that should be thesubject of international criminal law Also, when we come to think of the con-text of such international crimes, how much should variations in culture mat-ter, and should cultures play as prominent a role as groups and corporations?Third, considerations of social justice also are significant in internationalcriminal law, just as they are in other fields of law These conflicts are perhapsnowhere clearer than in the case of Guant´anamo Bay Here, considerations

of justice supposedly come up against considerations of security In addition,there are conflicts about protecting the environment and economic prosperity.Both of these topics are addressed in the chapters in the second section Inaddition, there are concerns that the very rhetoric of rights and justice mightconflict with the possibility of the betterment of people’s lives, calling intoquestion the very importance of manifestos and discussion of rights

Fourth, our authors also consider complex normative questions about how tothink of punishment and reconciliation in international criminal law Deter-rence in the international arena has been notoriously difficult, but is thisprimarily because of conceptual or practical considerations? Given that state

Introduction 3

leaders are the most likely to end up in the international dock, are they asprone to deterrence, or as deserving of retributive blame, as normal criminals?Also, does the holding of international trials make the prospects for reconcili-ation better or worse? Finally, what does reflection on such criminal trials andtheir rationale tell us about the nature of reconciliation or the justification ofpunishment? Our authors make progress on these tough questions in the finalsection of the book

A SOVEREIGNTY AND UNIVERSAL JURISDICTION

The first section addresses fundamental issues regarding state sovereignty,namely, when and to what degree (if at all) it can be overridden by inter-national legal institutions In the opening chapter, Win-chiat Lee takes upthe conceptual question of what constitutes an international crime, as distin-guished from a municipal crime Lee contends that many crimes currentlyrecognized as international crimes (e.g., piracy) are more properly understood

as crimes against states, but that these crimes are recognized as internationalcrimes merely as a matter of advantageous or convenient policy Regardingthose crimes that constitute international crimes in the strict sense, Lee arguesthat such crimes cannot be distinguished according to some independent,conceptually prior feature of the crimes themselves (e.g., that they involvemore than one nation or the crossing of national boundaries), a distinctionthat can then be used to sort out questions of territorial, national, or universaljurisdiction To the contrary, he contends that jurisdictional questions must beresolved first That is, international crimes proper can be distinguished fromcrimes against states only because the former are properly subject to universaljurisdiction whereas the latter are subject to territorial or national jurisdiction.Thus, the crucial question for Lee becomes, “Which crimes are properlysubject to universal jurisdiction?” On his account, universal jurisdiction isappropriate in cases in which a state commits, condones, or is unable to prevent

or punish serious crimes against its own citizens In such cases, the state is

in violation of the conditions under which its exercise of political authority

is legitimate Insofar as such crimes are subject to universal jurisdiction, Leebelieves that they can be distinguished as international crimes in the strictsense On his account, then, a war crime committed against a state that is able

to prosecute and punish the crime itself would not constitute an internationalcrime in the strict sense (although it might still be treated by states as aninternational crime for reasons of strategic advantage)

Kristen Hessler picks up the issue of universal jurisdiction, as she asks when,and to what extent, state sovereignty should constitute a hurdle to international

4 Larry May and Zachary Hoskins

prosecutions Hessler focuses on the accounts of sovereignty espoused by LarryMay and by Andrew Altman and Christopher Wellman Although Altman andWellman’s account disagrees with May’s on some points, Hessler contendsthat the two agree on the general point that, although sovereignty can beoverridden in various sorts of emergency cases, there should neverthelessremain a broad presumption in favor of nonintervention in states’ affairs It

is this presumption that Hessler aims to bring into doubt The increasingwillingness among theorists to endorse limits on sovereignty in emergencycases, Hessler claims, represents an initial move away from the traditionalWestphalian notion of sovereignty On her view, this growing consensus thatsovereignty may properly be overridden in certain emergency cases should spurtheorists likewise to reconsider their assumptions about whether sovereigntymay be overridden in other cases – cases that, although they may not rise tothe level of emergency, may nevertheless be quite serious

As an alternative, Hessler endorses a disaggregation of the elements ofsovereign authority, which would allow the various claims of sovereignty to beevaluated independently Such a strategy could actually facilitate individualstates’ cooperation with international criminal prosecutions because, underthis disaggregated conception of sovereignty, international prosecutions might

be less likely to be seen as usurping the state’s sovereignty in its entirety.Thus, by jettisoning the presumption in favor of even a defeasible right ofstate sovereignty in the traditional all-or-nothing sense, Hessler believes that

we would allow ourselves the freedom to consider how authority – specifically,the authority to prosecute or punish serious human rights abuses – might bebest allocated so as to respect human rights

Like Hessler, Leslie and John Francis worry that respect for state sovereigntymay often be in tension with the goals of deterring violence and protectinghuman rights More broadly, Francis and Francis are concerned with whetherthe International Criminal Court (ICC) and other international criminalcourts, insofar as their activities are grounded in principles such as the rule oflaw and respect for state sovereignty, may be ill suited to achieving the goal ofpreventing violence Their chapter contends that, whereas the goals of justiceand prevention may be mutually supportive in ideal theory, these goals maypull apart in circumstances of partial compliance (i.e., in circumstances ofwidespread violence and injustice such as those we face in the world today).When these goals do pull apart – that is, when considerations of ideal justicetend to undermine the goal of preventing atrocities – the authors argue thatthe goal of prevention must be paramount

Francis and Francis contend that rule-of-law restrictions such as due-processguarantees and limits on retroactivity may prevent the successful prosecution

Introduction 5

of persons who are in fact guilty of serious crimes Rule-of-law limits tend tomake convictions more difficult to achieve – thus, they serve as protectionsagainst wrongful convictions of the innocent Rule-of-law restrictions also willinevitably mean that the guilty will sometimes go free, however, and becausedeterrence requires the probability of punishment, rule-of-law limits may thusweaken the deterrent function of international prosecutions Similarly, respectfor state sovereignty, insofar as it may limit the ICC’s ability to prosecute andpunish the perpetrators of serious injustices, may thus tend to undermine theICC’s deterrent function The authors call for a reevaluation of the ICC thatacknowledges the circumstances in which we actually live, circumstances ofgrievous injustice and violence in which the goal of prevention should begiven priority

B CULTURE, GROUPS, AND CORPORATIONS

In addition to philosophical questions about sovereignty and jurisdiction, national criminal law also has generated conceptual puzzles related to groups.International crimes – crimes against humanity, genocide, and so forth – aredistinctive in that they are typically group based in the sense that they aretypically either committed by groups, are targeted at groups, or both Thus,the second section focuses on questions that international criminal law raisesregarding the identity of these two groups, the perpetrators and the victims

inter-of international crimes First, Helen Stacy asks whether international nal law is the appropriate mechanism for addressing human rights violationscommitted as traditional practices of cultural groups Stacy acknowledges thatinternational criminal prosecutions are important in responding to the leaders(the “big fish”) who commit massive human rights violations such as genocide,but many of the more common violations of human rights (e.g., female genitalcutting or honor killings) are cultural practices that reflect a given community’svalues As such, these practices are not likely to change merely because of thethreat of criminal sanctions imposed by the international community Instead,attempting to force changes in cultural practices through international crim-inal sanctions may increase hostility among community members, who mayhear the intended message of public condemnation as, instead, imperialistic

crimi-or culturally insensitive Rather than preventing such practices, internationalcriminal sanctions may only force the practices to adapt – to “go underground,”

so to speak – and may even result in more egregious rights violations.Rather than emphasizing criminal prosecutions of individuals who havecommitted culturally based violations, Stacy suggests that human rights may

be protected more effectively by stressing the role of national governments in

6 Larry May and Zachary Hoskins

fostering respect for human rights among their citizens Protecting its citizens’rights is a national government’s responsibility, and this requires provision foreffective institutions of education, economic development, and public health,among others For instance, she writes, in countries where female genitalcutting is an embedded cultural practice, government-sponsored educationprograms may do more eventually to reduce the practice than would prose-cuting and punishing parents who believe they are doing what is best for theirdaughters Focusing on the role of national governments in changing embed-ded cultural practices, Stacy contends, is thus more effective, as well as fairer,than punishing those members of the cultural group who participate in thepractices

Continuing with this issue of groups and the special concerns they raisefor international criminal law, Larry May’s chapter addresses the conceptualpuzzle of how victim groups should be defined, which has a direct bearing

on whether a charge of genocide is appropriate May advances a nominalistaccount of group identification, according to which an aggregation of individ-uals constitutes a victim group, for purposes of a genocide prosecution, if thevictim group both self-identifies and is identified by the perpetrator group as

a group Neither of these criteria is sufficient on its own: Identification by the

perpetrator group is crucial to establish that the attacks are intentional attacks

against a group Identification by the victim group is important to establishingthat the group exists in more than merely the minds of the perpetrators, so that

the attacks can be seen as genuinely group based rather than individual.

May’s nominalist account contrasts with an objective approach to groupidentification, according to which a group must have some objective existence

to count as a group for purposes of genocide law On one version of this view,

developed by William Schabas in his book Genocide in International Law,

the four categories of groups recognized by the 1948 Genocide Convention –racial, ethnic, national, and religious – meet the requirement of objective exis-tence, but it would be a mistake to recognize additional groups, or especially toallow subjective determinations of group existence May’s nominalist response

is that the remedy to purely subjective group identification (understood here

as identification merely on the basis of what one group thinks) is not objective

identification but rather intersubjective identification: Again, both the

perpe-trator group and the victim group must identify the victim group as such.Unlike Schabas, then, May endorses the recognition of more than the fourcategories of groups, so long as these additional groups meet his requirements

of self-identification and identification by the perpetrators

In the next chapter, Joanna Kyriakakis shifts focus from the identification

of victims to the prosecution of perpetrators, specifically corporations, for

Introduction 7

international crimes Kyriakakis examines the use of domestic “internationalcrimes” laws in prosecuting corporations, an issue that brings together twodistinct debates in legal philosophy: whether corporations can be the subjects

of criminal prosecutions, and when (if ever) states may claim extraterritorialcriminal jurisdiction She explains that criminal law has been reluctant torecognize corporate criminal liability, in particular because of doubts aboutwhether corporations could act with intention or make moral determinations.Armed with substantial literature from recent decades on the topic of groupsand collective responsibility, however, she critiques the traditional view thatcorporations are not the sort of entities that can be said to be criminallyliable

Regarding the question of territoriality, Kyriakakis discusses various erations that may tend to inhibit states from establishing extraterritorial crim-inal jurisdiction: the international legal principle of nonintervention, whichlimits a state’s permissible intervention in the internal affairs of another state;the principle of predictability in criminal law, which may impact whether acorporation falls under a particular jurisdiction; and the possibility of negativeimpacts on a state’s foreign relations Given these deterrents to prosecution

consid-of corporations for international crimes, Kyriakakis advocates including vate corporations in the jurisdiction of the ICC She contends that the ICC’scomplementarity model would encourage states, concerned with maintainingtheir sovereignty, to enact and apply domestic “international crimes” laws.Inclusion in ICC jurisdiction also would help to legitimize such nationalprosecutions of corporations for international crimes

pri-C JUSTICE AND INTERNATIONAL CRIMINAL PROSECUTIONSThe third section moves from broad, conceptual questions regarding juris-diction or the status of groups to focus on a variety of more particular issuessurrounding the role of international criminal law in securing justice and pro-tecting victims In particular, the essays in this section suggest, either implicitly

or explicitly, an expanded role for international criminal law in securing socialjustice

The first two chapters examine questions related to just war theory, thedoctrine of when and how wars justifiably may be waged Traditionally, just

war theory is divided into two areas: jus ad bellum, which concerns the ditions under which a state is justified in engaging in war; and jus in bello,

con-which concerns the means, or tactics, that parties in a conflict may justifiablyemploy In the first chapter, Douglas Lackey focuses on an often-overlookedcasualty in international conflict – the environment – and he advocates

8 Larry May and Zachary Hoskins

international criminal law as the appropriate domain for ensuring mental cleanups in the wake of such conflicts Lackey proposes, in addition to

environ-the traditional just war principles of jus ad bellum and jus in bello, a principle of

jus post bellum, according to which parties in a war are responsible for cleanup

and restoration of the environment when it is damaged by their military tions Lackey contends that environmental damage is better addressed withinthe international law of war than in civil suits In support of this conclusion, hecites the reluctance of civil courts to take sides in political controversies, andalso the fact that it often may be difficult to determine a particular injured party

opera-in cases of environmental damage In addition, he argues that locatopera-ing theseenvironmental obligations within the law of war, rather than in a system ofinternational environmental law, would provide greater incentive for militarycommanders to take such obligations seriously

Within the law of war, Lackey argues that environmental damage is not

clearly addressed by the various ad bellum or in bello considerations, for a state

might engage in a war for justified reasons and employ justified tactics, butnevertheless its military operations might result in damage to the environment

for which the state would be responsible Thus, Lackey’s post bellum principle

confers strict liability: A state is responsible for postwar environmental tion simply because it caused the damage, regardless of whether it did so aspart of a justified military operation in a just war Interestingly, his view implies

restora-that a state fighting a just war according to ad bellum and in bello principles

is responsible for environmental damages it causes but not responsible for theenemy state’s innocent civilians whom it kills Lackey offers several reasons tosupport this claim Notably, he points out that a damaged environment oftencan be restored (unlike killed citizens and destroyed cultural artifacts), andthat the citizens of a state are involved in the acts of their state in a way theenvironment is not

Similarly to Lackey’s chapter, Steve Viner’s contribution focuses on a variety

of injustices that can result in times of international conflict – specifically, theinjustices of the U.S policy of indefinite detention at Guant´anamo Bay, part

of the Bush administration’s self-described “war on terror.” Viner questionswhether this policy can be justified, as the United States claims, according

to the recognized international legal right of self-defense He analyzes thethree restrictions (immediacy, necessity, and proportionality) of the right ofself-defense as it is currently recognized, and he argues that it is plausible tobelieve the U.S practice of indefinite imprisonment at Guant´anamo meetseach of these limitations He introduces a fourth principle, however, the due

diligence principle, and he argues that it is with respect to this limitation

Introduction 9

that the current U.S policy fails The due diligence limitation requires that

a nation use all reasonable, available measures to make certain that eachperson subject to its indefinite detention policy is in fact a proper target(i.e., poses a sufficient threat) The U.S policy of indefinite imprisonment atGuant´anamo fails to meet this limitation, Viner claims, because the policyfails to implement sufficient “truth-conducing” procedures (essentially, thetraditional due process protections) to assist in determining whether a detaineeactually poses a threat

The due diligence limitation can be seen as similar to the “principle ofdistinction,” which is recognized in international law as a requirement that astate’s military not target civilians or nonmilitary buildings because these arenot legitimate military targets; however, Viner points out certain differencesbetween the principle of distinction and his due diligence principle Whereasthe principle of distinction limits targets to legitimate military objectives, thedue diligence principle limits targets to actual, or reasonably believable,threats Thus, Viner believes his principle improves on the principle of distinc-tion in that it would permit the targeting of civilians who nevertheless pose anactual threat to a state, and also it would prohibit the targeting of military unitsthat pose no genuine threat to the state Note that, by framing the issue of thedetainees’ treatment in terms of the international legal right of self-defense,Viner appears to imply that the detainees’ cases are matters of internationalcriminal law; thus, this account, like Lackey’s, would represent an expandedrole for international criminal law in the service of advancing social justice.Anat Biletzki’s chapter continues to examine the role of international law

in securing social justice, this time as a vehicle for the work of human rightsorganizations Biletzki begins with the observation that, despite a growingnumber of human rights violations by political entities, human rights groupsare traditionally wary of appearing to take sides in political disputes Thepractice of not mixing human rights work with politics has emerged bothfrom the principled view that human rights are inherently universal and thepragmatic concern that appearing partisan in a political imbroglio might lead

to restrictions on a group’s access within a given state or region, and thusmight undermine its ability to assist those most in need of aid Drawing onthe example of the Israeli–Palestinian conflict, however, Biletzki contends thatmaintaining a strict distinction between human rights and politics is untenableand, ultimately, undesirable The promotion and protection of human rights isinextricably connected with the political, and thus the question becomes howhuman rights groups are to embrace the political without becoming boggeddown in the partisan

10 Larry May and Zachary Hoskins

Biletzki encourages human rights groups to frame their work in terms ofprotecting victims, an ideal that is inevitably political (it sets human rightsgroups against abusive governments) but nevertheless also universal (victimsmay appear on either side, or both sides, of political disputes) The vehicle forpoliticizing human rights in this way, she contends, is international law Thelanguage of international law provides a generally accepted framework withinwhich organizations may couch their condemnation of policies that violatehuman rights without appearing to take sides in the relevant political dispute.Thus, international law serves as a vehicle for human rights groups to embrace

as part of their mission the achievement of political results, not in service of apartisan agenda but rather in the service of a universal norm: the protection ofinnocent victims Biletzki’s account raises certain questions for internationalcriminal law in particular, which may have a role in bringing human rightsviolators to justice, but which brings up potentially thorny issues of standing.This is especially evident in complex cases of the sort on which Biletzkifocuses, in which Israeli activists protest abuses by the Israeli governmentagainst Palestinian citizens within Palestinian borders

D PUNISHMENT AND RECONCILIATION

The final section focuses on questions related to what comes after internationalcriminal trials In the first chapter, Deirdre Golash provides both a vivid illus-tration of the circumstances surrounding various cases of international crimesand a critique of the justification of punishment as an international response

to such crimes Her objection to punishment may seem counterintuitive,particularly for international crimes, given that such crimes typically are com-mitted on a larger scale or are more grievous than are typical domestic crimes.Golash contends, however, that the circumstances of international crimes tend

to undermine the justification of punishment as a response Specifically, shesuggests that punishment in the international context may be less effective

in achieving the goals of prevention and condemnation, two frequently citedjustifications of punishment

Appealing to examples of international atrocities in Yugoslavia, Rwanda,and Uganda, Golash first considers whether the goal of prevention may bepromoted by punishing international crimes She cites various pressures thatoften encourage individuals to participate in wrong acts, whether direct threatsfrom authorities or the substantial social and psychological pressures oftenexplored in the psychological literature She suggests that, given these pres-sures, the threat of punishment is unlikely to be a sufficient deterrent in many

Introduction 11

cases Even for political leaders, who may not face the same coercive forces aslower-level participants, their circumstances and motives are often such thatthe prospect of punishment is unlikely to deter Similarly, she contends that theinternational context may undermine the expression of condemnation throughpunishment A message of moral condemnation is unlikely to be effective withlow-level offenders, whose crimes reflect not seriously defective moral charac-ter but rather susceptibility to strong social and psychological pressures Also,

an effective message of condemnation requires that the intended recipients(the perpetrators or the international community generally) respect the inter-national punishing body and that the punishment itself be interpreted as moralcondemnation rather than, say, as continued victimization by Western powers;

in practice, these conditions seldom hold

In the next chapter, the final contribution to this volume, Colleen Murphyprovides an account of the contribution that international criminal trials canplay in promoting political reconciliation In particular, she claims that suchtrials foster the social and moral conditions necessary for law to be effective

in transitional societies Murphy draws on the work of Lon Fuller to examinethe underlying conditions necessary for a legal system to regulate citizens’ andofficials’ behavior She cites four conditions: ongoing cooperation betweencitizens and officials, systematic congruence between law and informal socialpractices, legal decency and good judgment, and faith in law She appliesthe conceptual analysis to the case of transitional societies, those societiesattempting to establish peace after a period of repression or civil strife, andcites historical examples to support her contention that, in such societies, thefour necessary social conditions are typically lacking

Murphy contends that international criminal trials can play an importantrole in fostering the four conditions cited above and thus in facilitating theeffectiveness of law in transitional societies These trials can play an educativerole by providing a model of criminal justice that contrasts sharply with thepractices of the previous regime Providing such a model, she argues, can cul-tivate a sense of decency among persons who make and enforce the laws in thetransitional state (third condition above) Also, by exhibiting respect for dueprocess and the rule of law generally, international criminal trials can help torestore the faith in law among community members (fourth condition) Mur-phy recognizes that respecting due-process guarantees may sometimes result

in guilty individuals going unpunished This concern is cited, for instance, byLeslie and John Francis in their contribution to this volume Murphy respondsthat if few, or no, convictions can be achieved while respecting stringentdue-process restrictions, these restrictions may have to be reconsidered Still,

12 Larry May and Zachary Hoskins

she cautions that relaxing due-process protections (and the presumption ofinnocence on which they are based) risks falling back into the same practicesexhibited during the previous periods of civil conflict or repressive rule

* * *

International law in general, and international criminal law in particular, aresuch new fields that there is a sense that the fields are being constructedfrom whole cloth As in any emerging field of law, moral and other normativeconsiderations are especially important because it is from the granite of suchconsiderations that much of law is chiseled It is thus highly appropriate forphilosophers to engage with lawyers in discussing the future of internationalcriminal law In our volume, many of the authors are both lawyers and philoso-phers, making such a dialogue even more intriguing In addition, in a field

of law that is just emerging, there are unresolved conceptual questions Suchquestions are perhaps inevitable given how quickly the field has emerged Inour view, it is now time to take a step back and address some of these largerquestions

The chapters in this anthology, as is often true of good philosophical work,ask many more questions than are answered, but there are some answers.More important, there are clearly preferred avenues for reaching answers thatare sketched Even when answers are provided, it is often true that it is thereframing of the question that is most important for practitioners to come toterms with the foundations of the field in which they work It is thus also goodthat some of our authors have experience in legal practice that is relevant tothe concerns of our volume It is in the mix of legal practice, internationallegal theory, and traditional philosophical inquiry that progress can be made

on these foundational questions Some have said that international criminallaw is vastly undertheorized, especially given its importance Our collection

of works will aid in making such criticism less apt

SOVEREIGNTY AND UNIVERSAL

JURISDICTION

1 International Crimes and Universal Jurisdiction

Win-chiat Lee

I INTRODUCTION

Most crimes are municipal crimes subject to municipal criminal law Thereare some crimes singled out as international crimes subject to internationalcriminal law, however The main purpose of this chapter is to answer the ques-tion, “What are international crimes?” One could take this to be a lawyer’squestion – asking for a descriptive account of the criteria used in the actualpractice of international criminal law to identify international crimes Alter-natively, one could take this to be a philosopher’s question – asking for anormative account of what it is about some crimes that makes it appropriate oreven morally required to subject them to international criminalization In thischapter, my approach is neither exclusively normative nor exclusively descrip-tive, partly because I do not believe that we can always nicely separate the twoapproaches in theorizing about the law.1

The difficulty in separating the twoapproaches is especially acute in the case of international criminal law, notonly because international criminal law is still at a relatively formative andfluid stage, but also because its legitimacy is by no means uncontroversial and,therefore, not to be taken for granted Any plausible account of internationalcrimes as a legal theory, therefore, has to interpret the actual practice of inter-national criminal law without the benefit of a high degree of certainty aboutwhat the “raw data” are For such an account, therefore, the normative issuesconcerning the justification for subjecting these crimes to an internationalcriminal law regime become even more important

1

In this regard, my approach is close to what Ronald Dworkin calls the interpretive approach in

his book, Law’s Empire (Cambridge, MA: Harvard University Press, 1986) On Dworkin’s view,

an interpretive account of a certain social practice, such as law, would involve an interplay and perhaps trade-offs between two components, fit and appeal (i.e., between consistency with facts about the practice and justification for it) See esp Chapter 2.

16 Win-chiat Lee

There are several kinds of international crimes I argue that only a subclass

of international crimes constitutes international crimes in the strict sensebecause it is a matter of fundamental principle – not merely a matter of good orconvenient policy – that these crimes should be criminalized internationally

I will use the term international crimes proper to refer to this core class of

international crimes Antonio Cassese’s argument that piracy is not really aninternational crime will be discussed as an argument in support of my viewthat not all international crimes are international crimes, strictly speaking.2

Ialso argue, however, that Cassese fails to identify what is distinctive about thecore class of international crimes proper because he fails to explain, as in thecase of piracy, what makes some crimes only crimes against states, no matterhow universal their suppression is or how much international cooperationsuch suppression involves, and what makes some crimes crimes against theinternational community as a whole

If nothing else, ultimately, the distinction between international and tic criminalization seems to have something to do with jurisdiction in terms ofboth prescription and enforcement.3

domes-What is at issue is whether we can make

a fundamental distinction between crimes against states and crimes againstthe international community or humanity as a whole (i.e., as a logically priorand independent distinction, on which legitimate jurisdictional claims are to

be based).4

I argue in this chapter that the relationship is in fact the reverse

In my view, the distinction between crimes against states and crimes againstthe international community makes sense only in that some crimes may legiti-mately be subject to the exclusive territorial and national jurisdictions of states,whereas others may legitimately be subject to universal jurisdiction

2

The main source for this argument is Antonio Cassese, International Criminal Law (New York: Oxford University Press, 2003), 23–5 He has also made this argument in Cassese, International

Law (New York: Oxford University Press, 2001), 15 See also his discussion of piracy in relation to

universal jurisdiction in Cassese, “When May Senior State Officials Be Tried for International

Crimes: Some Comments on the Congo v Belgium Case,” 13 European Journal of International

Law (2002), 853–75, esp 857–8.

3

For a discussion of the distinction between prescriptive/legislative jurisdiction and ment/executive jurisdiction and the complications the distinction involves (especially in rela- tion to international criminal jurisdiction), see Roger O’Keefe, “Universal Jurisdiction: Clarify-

enforce-ing the Basic Concept,” 2 Journal of International Criminal Justice (2004), 735–60, esp 736–44.

There is not much in what I discuss in this chapter that turns on the distinction Instead, the discussion of jurisdiction in this chapter can be taken to refer to both kinds of jurisdiction with perhaps a greater emphasis on the enforcement aspect.

4

Crimes against humanity in this sense are to be distinguished from crimes against humanity

as specific crimes or a specific class of crimes under international law For the purposes of

this chapter, crimes against humanity is not to be taken to mean the specific crimes under

international law, unless specified otherwise.

International Crimes and Universal Jurisdiction 17

Let me briefly go over these familiar principles of jurisdiction Territorialjurisdiction is the jurisdiction that a state may exercise over a crime if the crime

is committed on its territory National jurisdiction is of two kinds: active andpassive Active national jurisdiction is the jurisdiction that a state may claimover a crime if the perpetrator of the crime is a national of that state, whereaspassive national jurisdiction is the jurisdiction a state may claim over a crime

if the victim of the crime is that state’s national Contrary to these limitedjurisdictions, universal jurisdiction is the jurisdiction that any state may claimover a crime solely because of the nature of the crime (and, thus, regardless

of whether there is any link to the crime through territory or nationality).Internationally, territorial jurisdiction and active national jurisdiction are themost established and the least controversial of these criminal jurisdictions.Passive national jurisdiction is perhaps not as well established but, in general,

is considered to be permissible these days The most controversial is, no doubt,universal jurisdiction.5

One can see why Even though national jurisdiction allows states to claimjurisdiction that is extraterritorial (as when a state’s national commits a crime in

a foreign country), such extraterritorial jurisdiction is still not very far-reachingbecause of the nationality link it requires to either the perpetrator or the victim

of the crime Moreover, territorial jurisdiction would probably cover most ofthe cases that a state may also claim on the basis of nationality anyway Unlikethese other jurisdictions, however, universal jurisdiction does not seem to fit

5

I have neglected to mention another principle of criminal jurisdiction in international law, namely, the protective principle By this principle, a state may claim jurisdiction over a crime committed abroad, regardless of whether the perpetrator is its national or a foreigner, if it threatens or affects the state’s fundamental national interests The relevant national interests are perhaps not as well defined as one would like, but examples of such crimes are clear They include counterfeiting of currency, immigration frauds, and attacks of national security (or plans thereof) So as not to make the distinction on which I focus for my argument unnecessarily cumbersome to state, I have left out the protective principle For the purposes

of my argument, the relevant issues that the protective principle presents are essentially the same as those that passive national jurisdiction presents The main difference between the two principles is this: In the case of the protective principle, it is the nation as a whole that

is harmed by the crime whereas in the case of passive national jurisdiction, it is its national who is the victim of the crime (The protective principle thus involves crimes that are crimes against states but in a sense that is different from the sense I have been using in this chapter.) However, for the points I will make in the next paragraph, such as the extent and nature of the extraterritorial jurisdiction the principles allow or their compatibility with our preconceptions about sovereignty, what I claim about national jurisdiction applies to the protective principle

as well Readers may generally read the reference to the territorial and national jurisdictions

in the distinction I draw in contrast with universal jurisdiction to include jurisdiction based

on the protective principle as well.

18 Win-chiat Lee

comfortably with our idea of sovereign states, each having its own limited

legitimate sphere of political authority that mainly does not overlap with those

of others Although universal jurisdiction usually refers to the jurisdictionthat states claim over certain crimes, for the purposes of my argument in thischapter, I also include the criminal jurisdiction that international politicalentities, such as the United Nations (UN) and the various criminal tribunals itsponsors or the International Criminal Court (ICC), would claim over certaincrimes, if such jurisdiction cannot be derived from the territorial or nationaljurisdictions of its member or signatory states.6

It is my contention in this chapter that the legitimacy of the category ofinternational crimes proper is based on the principle of universal jurisdiction,

as either exercised by states individually or by the international communitycollectively, and thus legitimacy stands or falls on account of that principle’sjustifiability in relation to those crimes Therefore, to answer the question ofwhether there is a distinctive class of international crimes proper, we need

to tackle more directly the justifiability of universal jurisdiction associatedwith these crimes This is what I intend to do in this chapter In a latersection, I provide an account of the justifiability of universal jurisdiction forinternational crimes proper that is based on the nature of the crimes involved –not so much on the kind of harm they inflict (they all involve serious harmdone to individuals), but more on how they pertain to the legitimacy of thepolitical authority of states

More specifically, I argue that international crimes proper primarily concernserious harm committed by the state against its own citizens on its own territory

I take these kinds of cases to be primary not only because they are clear cases ofthe state abusing its power, but also because they are the clearest cases in whichuniversal jurisdiction applies They include both cases of active participation

in perpetrating such harm by the state through its agents and cases of inaction

by the state that amount to condoning such harm when committed by nonstateactors I contend that when the state abuses its authority and perpetrates seriousharm against its citizens in either of these two ways, it violates the conditions ofits legitimacy as a political authority, including the legitimacy of its monopoly

of the use of force within its territory and in relation to its citizens Because

of this, as I will also argue, the state may not claim exclusive jurisdiction overthese crimes and thus opens the door for universal jurisdiction over them

6

I have argued elsewhere that the theoretical question of its justification is the same regardless of whether the universal jurisdiction is claimed by a state or by an international body, such as the

ICC See my “Terrorism and Universal Jurisdiction” in Steven Lee (ed.), Intervention,

Terror-ism, and Torture: Contemporary Challenges to Just War Theory (Dordrecht, the Netherlands:

Springer, 2007), 214–15.

International Crimes and Universal Jurisdiction 19

I also address some of the complications that arise when we depart fromthe central case For example, when the serious harm sponsored or condoned

by the state is perpetrated against another state’s citizens or on another state’sterritory, it is perhaps just as much a case of the state abusing its politicalauthority Whether the state’s forfeiture of exclusive jurisdiction over thesecrimes thus will amount to universal jurisdiction over them is less clear,however, because these cases would involve another state that presumablycould claim certain exclusive jurisdiction over these crimes as well

Furthermore, some cases of inaction by the state in preventing the mission of certain serious crimes or punishing their perpetrators after theyare committed are due to the state’s inability to do so This kind of inactioncannot always be construed to be acquiescence by the state Nonetheless, italso violates the conditions of the legitimacy of the state’s political authority

com-To be sure, it does not involve the abuse of political power by the state Instead,the state simply fails to perform a basic function I argue that cases of seriousharm committed by individuals unrelated to the state or by agents of anotherstate when the state is unable to prevent or punish such serious harm are alsosubject to universal jurisdiction In this way, they also should be consideredinternational crimes proper

The account of universal jurisdiction over international crimes proper that

I present here will show that universal jurisdiction is not really as radical adeparture from our preconceptions about sovereign state power as one mightthink, unless one believes the legitimacy of such power is unconditional Aslong as the legitimacy of sovereign states’ separate and mainly nonoverlappingpolitical authority has conditions and universal jurisdiction exists only as aconsequence of such conditions being violated, the two are not only quite con-sistent with one another, but in fact could very well be part of the same overallaccount of political authority, as they turn out to be on the account I present

II INTERNATIONAL CRIMES PROPER

To repeat, the main question is, “What are international crimes?” If the tion means what criteria are used in actual practice to identify an internationalcrime, what we need to do is to get ourselves acquainted with the facts aboutthe actual use of international criminal law The project would be to identify aset of rules or criteria that are used to identify international crimes – something

ques-like what H L A Hart calls secondary rules of recognition.7

7

H L A Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 97–107 However,

Hart himself is skeptical about the existence of secondary rules in the case of international law.

20 Win-chiat Lee

As in the municipal case, the secondary rules governing international inal law would be a set of mostly, but not necessarily, content-independentinstitutional rules that exist as a sociological fact The rules of recognitionfor international criminal law would involve an account of the role treaties,conventions, national criminal law, and custom play in the identification ofthe substance of international criminal law On this approach, what makes acrime an international crime, as opposed to a mere domestic one, is the factthat it is recognized as a crime by a set of secondary rules that is accepted andused in the international community, as opposed to one that is only acceptedand used within a state.8

crim-What endows the crime with its international status

on this approach is simply the fact that the relevant secondary rules of nition are accepted and used by the international community; there may benothing distinctively international about the nature of the crime itself To putthe point in a different way, on this approach, the fact that there may be somespecial characteristics about certain crimes that set them apart from domesticcrimes and make them particularly suitable or even morally obligatory for theinternational community to criminalize is entirely incidental to their status asinternational crimes

recog-The purpose of this chapter is to take the question I start with in a differentdirection The thought is that there are some crimes that are international

crimes and are treated as such because of the kind of crimes they are I do

not mean by this that there are certain crimes that typically involve more thanone state or the crossing of national boundaries.9

As I argue later, such crimescould still be only crimes against states Nor do I necessarily want to invokethe idea that it is natural law that provides the basis for the relevant aspect

of international criminal law More important, even if we do invoke naturallaw, the claim that certain acts are simply wrong by nature and thereforeought to be suppressed universally does not, by itself, explain the idea thatthese acts should be criminalized internationally as a matter of principle Thisclaim could very well lead to the conclusion that each and every state has aduty to criminalize these acts within their municipal law and, furthermore,even to the conclusion that states have a duty to cooperate with each other

in the suppression of these acts as, for example, in the participation in some

He writes, “It is indeed arguable that international law not only lacks the secondary rules of change and adjudication which provide for legislature and change, but also a unifying rule

of recognition specifying ‘sources’ of law and providing general criteria for the identification

International Crimes and Universal Jurisdiction 21

kind of extradition arrangement It need not lead to the conclusion, however,that these acts ought to be criminalized internationally in a way that goesbeyond the standard political framework of states exercising their legitimateauthority within their territories or over their citizens for the suppression andpunishment of crimes It simply does not stand to reason that every act that

is wrong or unjust by nature should be treated as an international crime.10

Otherwise it would lead to the absurd conclusion that the crimes that arestrictly the business of domestic criminal law could only be wrong or harmful

by convention

The basis of my claim that some crimes are international because of the kind

of crimes they are is the idea that some acts of harm, because of their relation

to the abuse of state authority or other violations of the state’s legitimacyconditions, are such that, for their suppression and accountability, we need

to appeal to an alternative framework other than the one of states exercisingtheir legitimate authority within their territories or over their citizens Myview is that the international community exercising political authority in theform of universal jurisdiction over these crimes, either collectively throughinternational political bodies or individually by each of the states, is thatalternative political framework

This is the class of crimes I have been referring to as international crimesproper By using this locution, I do not mean to suggest that internationalcrimes that do not belong to this category should not be treated as interna-tional crimes Nor do I mean to suggest these other international crimes areless egregious or involve less serious violations of human rights What I domean to suggest is that these other international crimes are matters that, inprinciple, can be dealt with within the standard political framework of statesexercising political authority within their territories or over their citizens,although in some cases there may be efficiency and effectiveness gained in thesuppression of such crimes if there is international cooperation Depending

on circumstances that could change, such policy reasons for cooperation may

or may not continue to exist and may or may not continue to be pressing

On my account, however, we have standing reasons in international law to10

Thus, those who think that international criminal law (at least the part that criminalizes certain acts as a matter of principle) is based on natural law would have to identify the further elements that would make a naturally wrongful act rise to the level of an international crime Barbara Yarnold refers to them as “international elements,” which include “shocking the conscience”

of the world community and a threat to world peace and harmony She also mentions state sponsorship or some kind of state activity as generally involved See Yarnold, “The Doctrinal

Basis for the International Criminalization Process,” in Cherif Bassiouni (ed.), International

Criminal Law, 2nd ed (Ardsley, NY: Transnational Publishers, 1998), Vol I, Crimes, 127–52,

esp 146–8.

22 Win-chiat Lee

criminalize a core class of crimes that cannot be dealt with within the standardpolitical framework of sovereign states with, broadly speaking, nonoverlappingspheres of political authority Such reasons are matters of principle and do notchange with the times Thus, other international crimes may come and go,but there are some core ones that are here to stay The rest of this chapter isdevoted to developing an account of this core class of international crimes

III IS PIRACY AN INTERNATIONAL CRIME?

As mentioned earlier, the account of the sources of international crimes

or the secondary rules recognizing certain crimes as international crimeswould involve an account of the role that treaties, conventions, national caselaw, and customary international law play in establishing these internationalcrimes Combing through all of the relevant sources, Cherif Bassiouni hasidentified twenty-five categories of international crimes ranging from crimesagainst humanity and genocide to piracy and traffic in obscene materials andnarcotics.11

When one looks at the list of crimes that are typically included asinternational crimes, however, it looks rather ad hoc and incomplete There

is clearly no systematic approach to international criminalization The endproduct appears lacking in unity and consistency as to what is included andwhat is left out as international crimes.12

The fact that international criminal law appears ad hoc and incomplete inwhat it criminalizes is not necessarily a problem per se, especially consideringthe fact that part of international criminal law is simply motivated by facilitatinginternational cooperation in extradition and the prosecution of certain crimesthat are or should be already well covered in municipal criminal law Infact, the incomplete and ad hoc nature of this part of international criminallaw might be inevitable or even advantageous, given the fact that it is simplybased on policy considerations for the purpose of enhancing domestic lawenforcement The completeness and consistency of the relevant criminal law ismore usefully raised at the domestic level That is not the issue here, however

My concern here is that there is another part of international criminal law11

For a complete list, see Cherif Bassiouni, “Sources and Theory of International Criminal

Law,” in Bassiouni (ed.), International Criminal Law, 2nd ed., Vol I, Crimes, 48.

12

The inconsistency may simply be due to the ad hoc and incomplete approach to criminalization

in international criminal law What is not prohibited is allowed even though the international community might not really want to allow these acts after they are considered Incompleteness thus might lead to inconsistency For a helpful discussion of the inconsistency of international criminal law, see Steven R Ratner, “The Schizophrenia of International Criminal Law,” 33

Texas International Law Journal (1998), 237–56.

International Crimes and Universal Jurisdiction 23

that involves what I called international crimes proper that would requirecompleteness and consistency because the criminalization involved here is amatter of obligation on the part of the international community At any rate, as

I will argue, it is the kind of criminal law that is fundamentally quite different

in nature than typical domestic criminal law, and its existence is not simply toenhance law enforcement or prosecution domestically

In this connection, it is useful to consider an argument put forward byAntonio Cassese According to Cassese, piracy is not an international crimebecause it fails to meet the definition of an international crime Cassese’sargument is especially useful for my purpose because of his more generalpoint that, given his account of the definition of international crimes, thereare some generally recognized international crimes that should not really beconsidered to be such A weaker way of putting Cassese’s point would amount

to drawing a distinction between international crimes proper and those that arenot core to the notion.13

How closely Cassese’s distinction, on this construal,coincides with the one I have in mind remains to be seen

Cassese’s view on piracy is provocative because piracy is often cited asthe classic, if not paradigmatic, example of international crimes Althoughits heyday as a menace to humankind has passed,14

piracy has the longestassociation with international cooperative efforts in the suppression of a crime

in the modern era Piracy has certainly all the trappings of an international

crime Pirates are considered hostes humani generis (enemies of humanity).

Universal jurisdiction is exercised in relation to piracy with probably lesscontroversy than any other international crime Besides piracy, there are othercrimes that Cassese does not consider to be international crimes even thoughthere very well may be international treaties or resolutions governing them.They include illicit drug trafficking, unlawful arms trading, smuggling ofnuclear and other dangerous materials, and money laundering.15

It would therefore be most interesting to consider Cassese’s reasons forrejecting piracy and some of the other crimes as international crimes I willbegin with Cassese’s definition of international crimes He lists four conditionsfor international crimes It is clear that he thinks that each is a necessary13

In fact, Cassese uses terms such as international crimes proper or core crimes occasionally in the book International Criminal Law, although it is not clear how theoretically “loaded” or

consistent his use of these terms is.

14

When I wrote this in earlier drafts, I had no idea that, off the coast of Somalia, piracy would soon become a serious international problem once again.

15

Cassese also does not include apartheid as an international crime (International Criminal Law,

25 ) Because the reason Cassese has for rejecting apartheid as an international crime is quite far from the issues raised in this chapter, I therefore set aside this particular topic.

24 Win-chiat Lee

condition for an international crime.16

The four conditions for internationalcrimes are these17

:

1 Violations of customary international rules that often originate in or areclarified by treaties

2 Violations of rules “intended to protect values considered important by

the whole international community and consequently binding all statesand individuals.”18

3 A universal interest in suppressing these crimes, manifested in the versal jurisdiction that states can claim in principle over these crimes.19

uni-4 No functional immunity for perpetrators who are de jure or de facto

state officials from the civil or criminal jurisdiction of foreign states.20

16

It is unclear whether Cassese considers the four conditions jointly sufficient for an international

crime He phrases it this way: “ international crimes may be held cumulatively to embrace the following ” (International Criminal Law, 23).

Although Cassese does not use the term universal jurisdiction in stating this third condition,

what he describes certainly looks like universal jurisdiction As he writes, “Subject to certain conditions, [the] alleged authors [of these crimes] may in principle be prosecuted and punished

by any State, regardless of any territorial or nationality link with the perpetrator or the victim”

(ibid.) I take this third condition to be Cassese’s expression of the centrality of the principle of universal jurisdiction to the idea of international crimes, a view I clearly endorse and intend

to substantiate philosophically in this chapter.

20

Functional immunity is the immunity from the civil and criminal jurisdiction of a foreign state enjoyed by state officials under customary international law for acts committed in exercising the functions of their office However, according to Cassese, under customary international law, as it has evolved since the end of World War II, such functional immunity is lifted and may not be used as substantive defense when it comes to international crimes Therefore, state officials may be held personally accountable for the commission of international crimes even

if the alleged crimes were perpetrated in an official, as opposed to private, capacity However, Cassese is careful to point out that, under customary international law, some categories of

senior state officials, such as heads of state, foreign ministers, and diplomatic agents may enjoy personal immunity from foreign jurisdictions while they are in office (International Criminal Law, 23–4 See also the discussion of immunities at 264–73.) Cassese’s view is perhaps not

entirely uncontroversial For example, there is one major discrepancy between Cassese’s view and the judgment of the International Court of Justice (ICJ) in the Case Concerning the Arrest

Warrant of 11 April 2000 (The Democratic Republic of Congo v Belgium) In Cassese’s view,

the ICJ’s failure in this case to acknowledge the customary rule lifting functional immunity for international crimes has the consequence of allowing prosecution and punishment of foreign ministers and other state officials for international crimes after they leave office only if such alleged crimes were committed in a private capacity when they were in office – a rare situation considering the kind of crimes international crimes are For Cassese’s highly critical discussion

of the ICJ opinion, see “When May Senior State Officials Be Tried for International Crimes:

Some Comments on the Congo v Belgium Case,” cited in n 2 above Customary international

law aside, it is also clear that the trend in treaty-based international criminal law, such as the torture and genocide conventions and the ICC statutes, and special legal instruments

International Crimes and Universal Jurisdiction 25

In Cassese’s view, piracy is not an international crime because it fails to meetcondition 2

Even though there was clearly an international agreement to suppress piracyand to provide for the exercise of universal jurisdiction over piracy, Cassesecontends that there is at best joint interest, but no community value involved

in the universal suppression of piracy Here Cassese is pointing out that national crimes are not simply what states agree to join forces to suppressbecause they see it as a good policy and in their own interest to do so What

inter-is thinter-is dinter-istinction between joint interest and community value that Casseseinvokes? By community value, Cassese is referring to the set of human rightsand humanitarian considerations “laid down, although not always spelled out

in so many words, in international instruments,” instruments such as the UNCharter and the Universal Declaration of Human Rights.21

On this account, itwould be clear that the joint interest involved in the universal suppression ofpiracy that Cassese has in mind, whatever else it might be, would not involvethe violation of universally recognized human rights and humanitarian con-siderations This explanation is clearly not adequate Through the suppression

of piracy, states presumably are also seeking to protect, besides economic ests, values such as security in person and property, which are clearly amongthe human rights and values laid down by the international community viavarious international instruments, although it might be a bit anachronistic tosay so in relation to piracy A state that does not act to protect individualsagainst piracy can clearly be said to have failed to respect human rights.Cassese may not have provided the correct account of the distinction, but

inter-he is inter-heading in tinter-he right direction I think what Cassese is really aiming at is amore fundamental distinction between crimes committed against the interna-tional community or humanity as a whole and crimes committed against states.The latter constitutes the class of domestic or municipal crimes, even whenthey are suppressed universally with international cooperation in enforcement,whereas the former constitutes the class of international crimes proper Cassesemay have thought that piracy is only a crime against states because states have

an interest in its suppression The relation, in fact, is the reverse The more damental notion, in my view, is crimes against states Piracy is fundamentally

fun-such as the statutes of international criminal tribunals, fun-such as the International Criminal Tribunal for the former Yugoslavia (ICTY), has been to move away from functional and in some cases even personal immunities for senior officials including sitting heads of state Heads

of state Slobodan Miloˇsevi´c (Yugoslavia), Charles Taylor (Liberia), and most recently Omar Hassan al-Bashir (Sudan), for example, were all charged with international crimes by special international tribunals or the ICC while they were in office.

21

Cassese, International Criminal Law, 23.

26 Win-chiat Lee

a crime against states, and it is for that reason that states have an interest in itssuppression On this view, it is the distinction between crimes against statesand crimes against the international community that requires a more funda-mental account that is not based on a prior distinction between state interestand community value On either approach, however, just because states, forgood reasons, find it advantageous to strike some agreement among them tocollaborate in suppressing a crime committed against states, does not makethe crime anything more than a crime committed against states It is not onbehalf of the international community as a whole that piracy is universallysuppressed; it is, rather, on the states’ own behalf, or better yet, on each other’sbehalf, that piracy is universally suppressed

As I have pointed out, whether the value protected is universally recognizedand considered important or even “laid down” in international instrumentsdoes not explain Cassese’s distinction between state interest and communityvalue Here I would add that, generally speaking, the issue concerning theuniversality of values involved also does not explain the distinction betweencrimes against states and crimes against the international community Much

of municipal criminal law, such as the prohibition against murder, also seeks

to protect values that are equally universal values in that sense.22

What reallydrives the distinction between crimes against states and international crimesproper is whether these values are violated by individuals against other indi-viduals, or whether they are violated by states against individuals, especially ifthey are their own citizens By the latter, I include both violations sponsored

as well as those condoned or tolerated by a state On this view, torture violateshuman rights and disrespects human dignity, whether it is used by a gangsterattempting to silence a potential witness or by a security officer to extract “con-fessions” from a political prisoner, but only the latter involves internationalcrimes proper unless the gangster is used by the state, as is sometimes the case,

to carry out the torture Similarly (with exceptions to be discussed later), onlystate-sponsored or state-condoned terrorist acts would count as violations ofinternational crimes proper even though they may be no more egregious or nomore likely to spread across national borders than those committed by individ-uals without being sponsored or condoned by a state This is the case even if theindividuals committing a terrorist act are foreign nationals or belong to someinternational network as long as they are not sponsored or condoned by a state.There are also important similarities between international crimes such asgenocide and crimes against humanity (now in the more specific sense thatnames a particular category of international crimes), and the kind of domestic22

This parallels the argument I made earlier in relation to natural law.

International Crimes and Universal Jurisdiction 27

crimes that we call hate crimes In both kinds of crimes, individuals are targetedfor killing and other kinds of harm not for their individual identity but for acertain group identity of theirs, such as their ethnicity My point, again, isthat hate crimes – no matter how egregious, widespread, and systematic –are generally crimes against states only as long as they are not committed

by individuals or organized groups of individuals under state sponsorship oracquiescence

It is particularly telling in relation to this point that an evidence Cassese usesagainst counting piracy as an international crime is the fact that, during theheyday of its enforcement, universal jurisdiction (one of Cassese’s necessaryconditions for international crimes) was suspended when piracy was commit-ted on behalf of a state (called “privateering” at the time).23

This point also ispresumably what explains Cassese’s fourth condition for international crimes,

that there is no functional immunity for perpetrators who are de jure or de

facto state officials from the jurisdiction of foreign states.24

It would defeat themost distinctive purpose of international criminal law, on the account I amputting forward, to allow for immunity simply on the basis that one is merelyexercising the functions of one’s office in perpetrating the crime

As I have mentioned, Cassese also argues that illicit drug trafficking, ful arms trading, smuggling of nuclear and other dangerous materials, andmoney laundering are not international crimes either This is not only becausethese crimes are governed by only international treaties, but no customaryrules (violation of condition 1 above); more importantly, it is because theyare usually crimes committed against states by private parties or criminalorganizations.25

unlaw-The view implied again is that only the crimes committed

by states or state agents can count as international crimes proper Included

in Cassese’s list of what really count as international crimes are war crimes,aggression, genocide, crimes against humanity, torture, and serious acts ofstate-sponsored or state-tolerated international terrorism These are certainlyacts typically committed by states or their agents Rather, one should saythat when similar acts of harm are committed by individuals against otherindividuals, without being sponsored or condoned by the state, then, generallyspeaking, they are more properly treated as crimes against states

23

Cassese, International Criminal Law, 24.

24

Again, this does not mean that, under customary international law, senior state officials may

not claim personal immunity from the jurisdiction of foreign states while they remain in office However, the movement away from both functional and personal immunity in treaty- based international criminal law, such as the ICC statutes, will only strengthen the account

of international criminal law I propose here See n 20 above for a more complete account of immunities under international law.

25

Cassese, International Criminal Law, 24.

28 Win-chiat Lee

Needless to say, it is not always clear whether an individual perpetrating

a crime is acting as an agent of the state, especially if such status does notrequire acting in a de jure official capacity Nor is it always clear when a state’sfailure to prevent or prosecute a crime amounts to tolerating or condoning

it Therefore, there are fuzzy cases of whether a core international crime hasbeen committed This should not prevent us from claiming the conceptualpoint I have been making regarding international crimes proper or the factualpoint that it is clear in the majority of cases whether the violation involvesinternational crimes proper

What I have identified and discussed in this section as distinctive aboutinternational crimes proper is mostly about the kind of perpetrator they involve,namely, the state through its agents, both official and unofficial I have notdifferentiated between cases in which the victims of the crimes are the state’sown citizens and cases in which the victims are another state’s citizens Norhave I differentiated between cases in which the crimes are committed onthe state’s own territory and cases in which the crimes are committed onanother state’s territory For reasons that will become clearer in the next

section, however, international crimes proper primarily concern serious harm

perpetrated by the state’s agents against its own citizens and on its own territoryeven though there may also be cases of similar harm (that should also beincluded as international crimes proper) perpetrated by agents of a state againstcitizens of another state outside of its territory Thus, on my view, paradoxically,

it is the genocide committed by agents of the state against its own citizens on

its own territory that is a more central case of international crimes than the

genocide committed by the state against a foreign population on foreign soil

IV THE DISTINCTION BETWEEN CRIMES AGAINST STATES ANDCRIMES AGAINST THE INTERNATIONAL COMMUNITY

I have argued that some international crimes are best seen as crimes againststates They become international crimes only because states see the advantage

of cooperating with each other (what Cassese calls joint interest) in suppressingthese crimes universally Here I would also add that if there is universaljurisdiction associated with these crimes, it is only due to what one mightwant to describe as the pooling of all the territorial and national jurisdictionsthat states have over crimes committed against them.26

Universal jurisdictionover these crimes, in other words, is the result of states making available

26

The universal jurisdiction resulting from the pooling of territorial and national jurisdictions

is presumably more amenable to an account based on the consent of states However, I am leaving it open that consent may not be the only way of accounting for pooling territorial and