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The distinct character of international crime: Theorizing the domain Kirsten J. Fisher Department of Political Science, University of Western Ontario, Social Science Centre, London, ON, Canada N6A 5C2. E-mail: [email protected]

Abstract If contemporary political theory in the area of international justice is to accomplish its aim of clarifying and making coherent the meaning of justice in an international context, the question of the appropriate role and responsibility of international criminal law must be answered. International criminal law must be more than simply domestic laws that are prosecuted at the international level. However, the question of what makes an international crime such that it deserves this special classification and international condemnation has not been adequately theorized. This paper examines the character of international law as expressed by two theorists, Allen Buchanan and Larry May, and reveals the deficiencies of their theories. Then, it offers the first steps to a better theory, one that demands that two thresholds be met for an action to be considered international crime: the severity threshold and the agency threshold. It argues that these two thresholds restrict the domain of international criminal law to crimes that are of significant concern to the global community by way of their threat to political organization. International crimes are the jurisdiction of the international community because they threaten the most basic physical security human rights and because they originate out of the fundamental nature of humans as social entities and maliciously distort and threaten this natural inclination. Contemporary Political Theory (2009) 8, 44–67. doi:10.1057/cpt.2008.21 Keywords: justice; international criminal law; human rights

Introduction As never before, issues with which contemporary political theorists grapple are international in nature. Events, decisions and human challenges that in the past might have been of little consequence or garnered little attention beyond national borders now have much wider repercussions and attract more widespread interest. To reflect these challenges to the convention of international realism, there has been a strong normative shift to cosmopolitan 44

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thinking in contemporary political theory. In line with this change, cosmopolitan law has extended the rule of law to the international sphere. The International Criminal Court (ICC) is an innovative form of cosmopolitanism, developing from, and enhancing, Kant’s conception of cosmopolitan law (Kant, 1795). This extension of the rule of law, however, produces difficulties for both international and domestic legal systems, demanding complex theoretical discussions concerning their respective roles, responsibility and aims. The distinctions between the systems and their domains have been recently discussed by political theorists such as Allen Buchanan (2004) and Larry May (2005), but such discussions have not provided satisfactory answers. To date, the issue of domain restriction in international criminal law has not been adequately theorized. This paper picks up this important debate and examines why it is that the objective of international law must be to prosecute specific international crimes, crimes that are not seen merely as domestic crimes prosecuted internationally, and examines the two most recent and remarkable attempts to define international criminal law; finally, it proposes a third. Answering the domain question is desirable from both political and conceptual points of view. We need to answer whether a strict distinction between international and domestic crimes is necessary, and if it is – and this paper will argue that it is – where does the distinction lie? We need to consider whether the limits of the international domain really need to be as strict as some theorists, such as May, would argue. His theory restricts the domain so fiercely that it would exclude crimes that the international community demands be included in the list. Buchanan’s theory, as expressed in his Justice, Legitimacy and Self-Determination, on the other hand, characterizes international crime so broadly as to include many acts that ought not, and would not, be prosecuted internationally. From their attempts, we can extract widely held intuitions of what it is international criminal law must do and also where the line ought to be drawn between it and domestic law. Thus, this paper demonstrates that much can be learned about the domain and what we desire of it from the failure of these two theories. As an alternative to either the too broad interpretation offered by Buchanan or the too strict interpretation by May, I will propose a third option. This third option demands that two thresholds be met for an action to be considered international crime: first, it must meet a particular threshold in terms of the type of human rights violation, and second, it must satisfy in the manner in which the rights are violated. The criminal activity must be a violation of a physical security human right and it must demonstrate a perversion of political organization. Beyond the substantive conceptual question, there are difficult political issues concerning procedure and who – which institutions – should r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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prosecute international crimes. These issues are beyond the scope of this paper, which aims to distinguish the content of international criminal law and provide critical boundaries for the domain.

Why a Distinction? The objective of international law must be to prosecute specific international crimes, crimes that are not seen merely as domestic crimes that happen to be prosecuted internationally. This distinction is desirable from both political and conceptual points of view: politically, state acceptance of international criminal institutions may hinge on the fact that international law has only limited capacity to interfere in the internal workings of states or to override sovereignty (Ayoob, 2002). International law is often restricted in the name of sovereignty as many scholars see respect for the sovereignty of states as the universal standard of international conduct (Jackson, 2004). Sovereignty of states can also restrict the kind of law that forms international law. Importantly, because one or more of the elements of legalization can be relaxed, softer legalization is often easier to achieve than hard legalization. This is especially true when the actors are states that are jealous of their autonomy and when the issues at hand challenge state sovereignty. (Abbott and Snidal, 2000, p. 423) Since state sovereignty is so significant in the current global context, a distinction between international and domestic jurisdiction is liable to be necessary for states, as the primary decision makers, to support a system of international law. This distinction is also important because international prosecution is costly, due to the need to create – often from nothing – an entire international judicial system.1 If there were no domain restriction, this international judicial system could easily become overloaded with a wide range of crimes. Limiting international criminal law to the domain of the most serious crimes helps to ensure financial feasibility for the international judicial system. Philosophically, this distinction is a moral necessity. There are good reasons for the basic well-being of individuals to be left to the institutions of the lands in which they reside. Similar to utilitarian arguments for familial preference, as long as the state functions well and safeguards the basic rights of its citizens, there are practical reasons to believe that the most efficient way to protect human rights globally and allow sufficient latitude for cultural differences to be explored and nurtured is through the conditional sovereignty of distinct geographical and cultural groups (Walzer, 1977, pp. 53–55). 46

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The demand that the domain of international criminal law must be unique to itself, however, needs to be examined in more depth to provide a sophisticated normative account of the need for this distinction and in order to define the domain of international criminal law. There is, in fact, a body of literature demanding that international criminal law be an overarching extension to domestic judiciaries, usually with the aim of prosecuting any human rights violation. One such position is offered by Andrew Altman and Christopher Heath Wellman in their paper, ‘A Defense of International Criminal Law’. They argue that there is no need to draw a ‘distinction between what actions might be under domestic or international criminal jurisdiction’ (Altman and Wellman, 2004, p. 63). On the face of it, their position makes sense. When a state is not satisfactorily performing its requisite political functions, ‘when it is either unable or unwilling to secure peace and protect its people’s basic rights, the international community may permissibly intervene in order to take up those functions when basic rights violations are widespread or systematic’ (Altman and Wellman, 2004, p. 63). Similarly, the Responsibility to Protect (R2P) doctrine argues for a global responsibility to protect individuals at great risk by blurring the lines between domestic and international domains. ‘State sovereignty implies responsibility, and the primary responsibility for the protection of its people lies with the state itself. [But] where a population is suffering serious harm, as a result of internal war, insurgency, repression or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of non-intervention yields to the international R2P’ (ICISS, 2001, p. XI). This position, sovereignty as a responsibility to protect the people of a given territory, was first expressed by Francis M. Deng (1996), and subsequently argued by Fernando Teson (1998) and the drafters of the R2P monograph. This responsibility leads to universal jurisdiction over crimes that violate human rights. It advocates for realizing a notion of universal justice – justice without borders, in process as well as in the substance of international human rights law. ‘The key to the effective observance of human rights remains, as it always has been, national law and practice: the frontline defence of the rule of law is best conducted by the judicial systems of sovereign states, which should be independent, professional and properly resourced y [but] when national systems of justice either cannot or will not act to judge [sufficiently atrocious violations of human rights] universal jurisdiction and other international options should come into play’ (ICISS, 2001, p. 14). R2P sets a broad base for subject matter jurisdiction, the domain of human catastrophe over which international law has jurisdiction. However, its assertion of jurisdiction admissibility, especially in terms of humanitarian intervention, is quite strictly guarded. The R2P argument is conditional in respect to proportionality and reasonable prospects, as well as the extent of human suffering and death. International interference must be the r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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‘minimal necessary to secure the defined human protection objective in question y [and] there must be a reasonable chance of success in halting or averting the suffering’ (ICISS, 2001, p. 37). Arguing for the responsibility to invoke military intervention, this position sets the bar high for harm that requires international interference. It, like May’s will be shown to do, then, draws the restricting line based on the harm caused by the international response and not in terms of a distinct character exhibited by international crime. Therefore, while the jurisdiction of international criminal law is broadly construed by R2P, restrictions concerning when jurisdiction can be exercised are very restraining. The problem with these broadly construed positions is that they turn simply on human rights violations, arguing that any time a state cannot protect its citizens from widespread or systematic human rights violations, international criminal law must step in. There are two flaws apparent in this thinking: the first is only that including all human rights violations within the domain of international criminal law makes the domain too expansive and inclusive. However, for now, we can put aside this issue of how inclusive the domain of international criminal law must be. It will be dealt with in more detail later in this paper when we explore the limits of international criminal law. Another flaw is that in conflating domestic and international crime, the strength of moral condemnation attached to labelling something an international crime is diminished. In some ways, we want to claim that international criminal law deals with actions that are beyond the reach of domestic law; they are not only crimes that the state is unable or unwilling to prosecute but crimes that illustrate a specific kind of evil (Vernon, 2002, p. 234). The drafters of the Rome Statute capture this view when they wrote that there are ‘unimaginable atrocities that deeply shock the conscience of humanity’ (Rome Statute, preamble). International crime, therefore, needs to be defined by its unique character. The distinction between domestic law and international law, based on the severity and manner of the criminal act, ought to rest with what actions should be censured by all states acting as a whole (or at least State Parties to the ICC when it is acting under its state-referral or prosecutor-initiated jurisdiction). Mark Drumbl identifies them as atrocity crimes, ‘acts of atrocity characterized as extraordinary international crimes’ (2007, p. 4). The question must be: what actions are devastating enough to require the explicit condemnation of the international community in the form of classification as an international crime? This question demands two distinctions be made: the first is the distinction between domestic and international jurisdiction. The second is between a violation and a crime. A human rights violation encompasses actions that the international community condemns and hopes to influence positively, but not actions that 48



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demand penalty and censure as criminal. For example, the international community hopes to persuade all states to tolerate religious freedom or the right of all persons to own property. However, the violation of these rights may encounter political criticism and invoke incentives for change, but does not constitute international crime. International crime is action that harms the most basic human rights, those necessary to enjoy any rights: physical security human rights; and, as this paper will show, it is action that threatens, and arises out of, the natural human inclination to organize politically. Before introducing this characterization of international criminal law, one that rests on the satisfaction of two restricted thresholds, however, I will, in the following sections, examine two possible classifications of the domain of international criminal law. The first, offered by Allen Buchanan, proposes a foundation for international law based on human rights and recommends restructuring the current international system according to moral principles, proposing ‘legal norms and practices which, if implemented with reasonable care, would make the system more just’ (2004, p. 4). It suggests that all persons possess a natural duty of justice (NDJ) to ensure that all others have access to institutions that protect their basic human rights. It demands the existence of what he describes as transnational justice and opens the door to justifying international criminal prosecution for human rights violations of a particular magnitude because it breaks down sovereignty and demands an alternative grounding for international law. This theory, however, stops short of expressly delineating the domain of international criminal law, and the domain, as can be interpreted from his theory, is very broad indeed. On the other hand, an interpretation of the distinct characteristic of international crime offered by Larry May argues that international crimes threaten individuals without regard for their individuality, therefore threatening one of the most salient features of humanity. This theory will be shown to be too narrowly construed. This understanding of international crime would exclude criminal behaviour that ought not to be omitted from the category of international crime. The failure of these two options opens the door for the human rights threshold option that this paper presents.

The Broad Interpretation: Buchanan and the NDJ Allen Buchanan, like many of his liberal contemporaries, including Larry May, justifies the power of the state by its willingness and ability to protect the rights of its citizens. He argues that state sovereignty must be limited, and that recognition of a state is not a neutral act. State legitimacy is based on the ability and willingness of a state to protect the human rights of its citizens. Justice, to him, is the defense of human rights. He claims that we each have a r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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Natural Duty of Justice (NDJ); we each have a limited obligation to help ensure that all persons have access to institutions that protect their human rights. International law should be evaluated in terms of how well it endorses the promotion and protection of human rights. Ultimately, he rejects the traditional conception of international law as a set of rules for the interaction of equal sovereign states, founded on their consent, and he advances ‘a conception of international law grounded in the ideal of protecting the basic rights of all persons’ (Buchanan, 2004, p. 290). He argues that international law ought to be grounded in principles of justice that are evident without assuming they would be agreed to, and, unlike Rawls (1971), he wants to claim that justice imposes obligations on individuals as well as institutions. The main problem with international law, according to Buchanan, is that scholars and interested parties cannot even agree on an account of the most important moral goals of the international legal system. Buchanan argues that it ought to be justice. He bases his theory of international law on three principle thoughts – the first two are moral premises, and the last is factual: first, all persons are worthy of equal concern and respect. Second, treating persons with equal concern and respect demands that we treat them justly. And third, treating people justly requires that just institutions, including just legal institutions, be created. One of the most important ways we show equal concern and respect for persons is by acknowledging that there are human rights. Therefore, justice imposes obligations on individuals, as well as institutions, to protect the basic human rights of all persons (Buchanan, 2004, pp. 87–93). A state is one possible rightsprotecting institution. But, if a state fails to protect the rights of its citizens, individuals of the world have the duty to ensure that the citizens of that state have access to an alternative rights-protecting institution. International legal institutions are an alternative, or an additional, precaution. Buchanan is careful to note that international law cannot, and should not, simply duplicate domestic legal systems. In fact, he distinguishes three potential legal frameworks: domestic, international (which is different from what is commonly understood as international law, and which I will therefore refer to as ‘inter-national’), and transnational justice. Domestic legal systems we understand, of course, as internally devised and performed. Inter-national justice governs only relations between states. Transnational justice deals with ‘those minimal standards, preeminently basic human rights norms, that the international community may justifiably require every state to meet in its internal affairs’ (Buchanan, 2004, p. 294). It concerns rights and duties that exist ‘among members of the same state or between the government of a state and its members which ought to be recognized by international law as being universal, that is, applicable to all states’ (Buchanan, 2004, p. 191). It expresses principles of justice that the international community ought to ensure are met 50



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by all states in their internal affairs. International criminal law covers questions of both inter-national and transnational justice, but is primarily concerned with issues of transnational justice as Buchanan defines it. He provides reasoning for why transnational law is an inevitability of his moral theory of justice by asking and answering why it would be that transnational law could better articulate and apply the dictates of justice than domestic or inter-national law. His answer is twofold: first, he points out that many states do not promote or protect the human rights of their citizens. He claims that a human rights regime would be able to help them, or persuade them, to do so (Buchanan, 2004, p. 296). But, he also argues that if there is a morally worthy international legal system that can govern the interactions between states, it must be able to interfere into the internal affairs of the states. ‘A regime of international justice, which governs relations among states, must include principles for identifying which entities are legitimate states and this requires principles of transnational justice’ (Buchanan, 2004, p. 296). Probably because his original intention for this work was to continue his discussion about how the international community does, and should, recognize states as legitimate – especially in cases of state-breaking – he concentrates mainly on questions of sovereignty. He does not address important questions about international criminal prosecution of the violators of the human rights he is so concerned with. It seems that on his theory, like that of Altman and Wellman, almost any human rights violations (with the limitation that the right be included in his particular list of human rights) can be seen as under the jurisdiction of international criminal law. As indicated earlier in this paper, defining the domain of international criminal law so broadly as to include any human rights violation would violate the spirit in which the concept of international jurisdiction is accepted and would deny a community the important group right to self-determination to decide for itself how to respond to particular anti-social acts committed by, and against, its own members. Buchanan, however, is slightly more limiting than to permit any human rights violation to fall under international criminal jurisdiction and does not accept that any violation of the entire range of human rights listed in the UDHR would constitute a serious human rights offense. His is a minimalist view of human rights in the substantive sense. So, what are human rights to Buchanan? And why should they serve as the critical touchstone for reforming the law? For Buchanan, human rights are moral rights that exist independently of whether they are enshrined in law or not (2004, p. 119). A human right must be an interest identifiable as having such moral significance as to warrant such extraordinary protection, an interest shared by all people and identifiable as a condition of human life, and it must require institutional arrangements to be protected (Buchanan, 2004, p. 119). He focuses on what he terms ‘the most basic human rights – those most important for the capacity to live a decent r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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human life’ (Buchanan, 2004, p. 129), which include the right to life, security of the person, and the right not to be subject to arbitrary arrest, detention, or imprisonment; the right against enslavement and involuntary servitude; the right to resources for subsistence; the most fundamental rights of due process and equality before the law; the right to freedom from religious persecution and against at least the more damaging and systematic forms of religious discrimination; the right to freedom of expression; the right to association (including the right to marry and have children, but also to associate for political purposes, etc.); and the right against persecution and against at least the more damaging and systematic forms of discrimination on grounds of ethnicity, race, gender, or sexual preference. (Buchanan, 2004, p. 129) From examining what he does say about human rights and their institutions, then, we can extract a likely domain for international criminal law. It would seem to follow from his theory that any violation of these basic human rights could fall under international criminal jurisdiction. It would also follow that some non-physical security violations, such as discrimination on the basis of gender or ‘preventing people from practicing their religion’, would constitute violation of a basic human right (Buchanan, 2004, p. 135), and therefore could be considered an international crime, prosecutable internationally. Again, it is important to re-examine his conception of the NDJ which claims that persons have the limited moral obligation to help ensure that all persons have access to institutions that protect their basic human rights. For this paper’s purposes, the most important part of this tenet is access to institutions that protect their basic human rights. According to Buchanan, institutions are the best means of ensuring that basic human rights are protected and so the NDJ claims of each person an obligation to each other that each has access to such institutions. Granted, Buchanan offers a persuasive positive argument for grounding a moral theory of international justice in human rights. But, what institutions are required to protect basic human rights? This is an area in which Buchanan’s theory is deficient. He fails to address adequately the distinction between international (or transnational) criminal law and domestic criminal law, and he fails to provide a clear distinction between different rights-protecting institutions. Restricting his exploration of moral foundations of international law within the limits of questions of sovereignty and secession, then, Buchanan focuses on defining a legitimate state, claiming that international law is a normative requirement to evaluate legitimacy of states and to breach sovereignty as an institution to protect basic human rights. He provides justification for 52



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humanitarian intervention on the basis on human rights protection. He makes no distinction, though, between different rights-protecting institutions and therefore no distinction between public international law (laws that guide state action with fear of penalty to the state) and international criminal law (law that imposes behavioural restrictions on individuals for fear of prosecution and personal sanction). In this same vein, Buchanan does not give answers as to which individuals should be prosecuted or for what. And, it is not clear on what facts decisions to prosecute internationally should turn. Since he wants to maintain a strict distinction between international and domestic law, there seems to be a strong disconnect between his intentions and the proper development of his theory to answer these questions. He seems to need a stronger explanation of the domain restriction and a clearer account of how we can, and ought to, actually hold individuals accountable under international law.

The Strict Interpretation: May and the International Harm Principle According to Larry May, international prosecution is only justified if the crime meets the two qualifications necessary for it to be considered an international crime: it must satisfy the Security Principle and the International Harm Principle (IHP). The Security Principle is based on the understanding that states must be able and willing to protect the basic interests of their citizens. If they cannot, or will not, then the international community has the right to intervene to protect the victims or to minimize harm. A violation is an assault to the physical security or subsistence of citizens by a state or acquiescence of the state in such an assault. When a state chooses not to, or fails to, satisfy the requirement of protecting its citizens, ‘an international body may be justified in then acting to protect those subjects’ (May, 2005, p. 68). Violation of the Security Principle, while it may be enough to justify humanitarian intervention, is not, however, – on its own – enough to justify international prosecution. International prosecution can only be justified by satisfaction of both this principle and the IHP. By appealing to the IHP, May argues that only serious harm to the international community can justify international prosecution as crimes against humanity.2 They ‘are of interest to the international community because they are more likely to assault the common humanity of the victims and to risk crossing borders and damaging the broader international community’ (May, 2005, p. 83). He argues elsewhere that his ‘argument rests in part on consequentialist concerns – namely, that violence directed at groups rather than at discrete individuals risks spilling over border y but, more importantly, r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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on non-consequentialist grounds, to not treat people as individuals is to fail to take their humanity seriously’ (May, 2006, p. 374). Harm to the international community ought to be seen, according to May, as harm to humanity. By this, he means that one of the most salient features of humanity – individuality – is harmed. Individuality is harmed by nonindividualized harm to persons. Victims are targeted not because of their own particular individual traits, but because of their inclusion in a group. Consistent with the Rome Statute’s definition of crimes against humanity, there are two features to May’s IHP: the crime must be widespread and/or systematic. Widespread refers to the sheer number of victims, usually groupbased. And, systematic refers to the characteristic of the perpetrators: a group. So, violations of the IHP are inflicted on a group, by a group, or simply, on a group or by a group. And, for May, crimes of this nature, if they also satisfy the Security Principle, can be identified as crimes against humanity. One problem with his classification, though, is that his reason for limiting this category to only serious attacks is not sensible. If we follow his conception of the IHP to its logical conclusion, then any human rights violation, if it harms a group and is instigated by a state or is allowed by a state, should satisfy the International Harm Principle (IHP). Why is it then that May limits international prosecution to serious crimes? He claims that it is because of the serious risk to the liberty of the defendant; it is because international trials have only the capacity to imprison, to restrict personal liberty. Therefore, violating a right to paid vacation3 should not be addressed by an international trial since the crime is not severe enough to demand the punishment of incarceration. According to May, the reason the category of international crime must be restricted to serious attacks is that there are no privileges in the international sphere comparable to the privileges on the domestic sphere that the trial judge can restrict (2005, pp. 71, 77). May claims that, ‘philosophically, we are justified in applying universal criminal norms in the international arena only when the scope of international crime is restricted to those crimes and criminals that are truly deserving of international sanctions’ (2005, p. 4). His position is that because international trials only have the capacity to imprison, to restrict personal liberty, the serious risk to the liberty of the defendant demands a certain gravity of criminal behaviour. This is true, of course, insofar as the domestic system has more options available to it, depending on the crime: suspended sentences, house arrest and community service are examples. On the other hand, the fact that imprisonment is the only recourse available to the international penal system means that internationally convicted criminals may escape harsher punishments, such as the death penalty, employed by some domestic systems. The distinction between domestic and international crime, however, should not rest on the limits to the variety of penal options at the international level. 54



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May’s demand, then, that the category of international crime must be restricted to serious attacks because there are no privileges in the international sphere comparable to the privileges on the domestic sphere that the trial judge can restrict is not satisfactory. If the distinction between international and domestic crimes rests on the fact that international trials cannot proscribe lesser punishments, then perhaps the tenets of international punishment require reappraisal. There seems to be nothing refraining the system from devising a way to impose lesser punishments than incarceration.4 In reference to the example of a mass violation of the right to paid vacation, perhaps there ought to be a way of dealing with this particular crime – as long as it is perpetrated by a state or allowed by the state and is directed at a particular group to ensure that the IHP is satisfied. Likewise, perhaps the Ontario Separate School situation, in which religious discrimination on the part of the Canadian government deems Roman Catholic religious education worthy of public funding at the exclusion of all others, ought to be addressed and acts of supporting and assisting this discriminatory system ought to be punishable through the international criminal system.5 The reasons that these examples, mass violations of the right to holidays with pay and religious discrimination, are not under the jurisdiction of international criminal law are more sophisticated than simply that there are no proportional international punishments. Another problem with May’s theory is that his conception of group-based harm seems to centre around the non-individualistic nature (or inclusion in a group) of the victim. He claims that ‘while the nature of the crime may be difficult to determine, the international community is likely to be harmed when the perpetrator of a crime does not react to the individual features of a person, but rather to those features that the individual shares with all, or very many others’ (May, 2005, p. 83). This description of an international crime clearly demonstrates May’s IHP; members of humanity are less secure when the international community acquiesces to attacks that target members of a group rather than individuals based on their own characteristics. He continues, though, to include crimes in which ‘the perpetrator of the harm is, or involves, a State or other collective entity rather than being merely perpetrated by an individual human person’ (May, 2005, p. 83). Either the victim or the perpetrator (and ideally both) must be part of a group. However, only the first condition really makes sense in terms of the IHP. According to the IHP, one of the most salient features of humanity is individuality. It is important to recognize each person as different and valuable in themselves. When clear nonindividualized treatment, group-based harm, occurs, it should be seen as harming the individuality, an important characteristic of humanity, in each of us. The inclusion of the systematic (and group-based) requirement of the perpetrator, though, seems only to be an attempt by May to comply with r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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Article 7 of the Rome Statute that outlines crimes against humanity as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; [etc.] (Rome Statute, Article 7.1). Interpretations of Article 7 view the systematic requirement as covering the group-based nature of the perpetrators. ‘The term ‘systematic’ requires a high degree of orchestration and methodical planning’ (Robinson, 1999, p. 47). Darryl Robinson quotes an ICTR (International Criminal Tribunal for Rwanda) decision that discusses this term, claiming that ‘the concept of ‘systematic’ may be defined as thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources’ (1999, p. 47).6 May, agreeing with the common understanding of the widespread or systematic requirement claims that ‘justified international prosecutions require either that the harm must be widespread in that there is a violation of individuality of a certain sort epitomized by group-based harmful treatment that ignores the unique features of the individual victim, or the harm must be systematic in that it is perpetrated in pursuance of a plan by an agent of a State or with active involvement from a State of State-like entity’ (2005, p. 89). May’s harm to humanity characterized as harm to individuality, though, does not clearly defend the idea that an organized collective (that is, State) as perpetrator causes serious harm to the most salient features of humanity, individuality. However, if the group-based requirement only refers to the victims, then May would be restricting the category of international crime too firmly.7 If we assume that we need a group-based victim group to satisfy the widespread condition, then we will have to eliminate some international crimes that seem obviously to be likely candidates for classification as crimes against humanity. One example is the ‘comfort women’ victimized by the Japanese during WWII. They can hardly be considered a coherent group, given their varied nationalities and characteristics. However, if we choose to ignore the ‘groupbased’ requirement for some less stringent requirement like ‘non-individualized’ treatment, satisfying only May’s Security Principle, then we open up the classification to many crimes that do not deserve to be identified as international crime. In fact, this classification could then admit any crime committed by a gang or individual that victimized a number of disparate people (and was not prosecuted by the domestic legal system – to satisfy the Security Principle). Since May is advocating for the defendant’s position, and trying to limit what can be considered international crime to the most serious of offenses, this does not seem to be an outcome that May would want of his theory. Finally, there is a problem with May’s Security Principle itself. Its inclusion, as it stands, conflates subject matter jurisdiction – what actions ought to be 56



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characterized as international crimes – and jurisdiction of another kind. This second form of jurisdiction, the type with which May’s Security Principle seems primarily concerned, refers more to when international jurisdiction should be exercised than to the defining character of international crime. As I will show later, it may be the case that international crimes can be prosecuted internationally or by domestic institutions, due to financial or political considerations, and likely with international supervision and evaluation. May’s Security Principle, based on the understanding that states must be able and willing to protect the basic interests of their citizens, seems to argue for the conditions under which international jurisdiction should be exercised over the crimes within its domain, but does little to help distinguish which crimes fit within the domain. This is not a serious flaw but does lead to some confusion.8 However, May is right that there needs to be a distinction between international and domestic crime. He is most likely correct in his assertion that the denial of certain human rights to a group may not justify international prosecution. The distinction between internationally prosecutable and other crimes, though, must not rest on the existing feature of international law that international punishment is restricted to imprisonment. And, the domain of international criminal law cannot be characterized by May’s IHP which would be so restrictive as to exclude crimes committed by an armed and politically motivated group if it were not committed against an identifiable victim-group. A more sound theory should present an underlying principle of international crime that encompasses each of the recognized forms of international criminal behaviour, covering the four international crimes – genocide, crimes against humanity, war crimes and the crime of aggression – and be able to demonstrate why it deserves international condemnation.

The Human Rights Thresholds Option There is a general presumption in favour of state sovereignty. Both May and Buchanan recognize that states exist and can be appreciated as the primary protecting agent of basic interests of individuals. States should be considered legitimate insofar as they generally protect the human rights of their citizens or the people who reside within the geographical territory over which they have the monopoly of power. First, it is out of the scope of this project to produce a plan for a world without states. Second, it is not the prerogative of international criminal law to eliminate states – indeed, international criminal law’s procedures are premised on the existence of states. And, finally, and most importantly, there is a normative argument for the preservation of states for the protection of cultural distinctions. The existence of states defends distinct cultures, understands customs originating out of different circumstances that r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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demands different directives and secures the opportunity for democratic self-determination.9 The domain of international criminal law exists just beyond the reach of domestic law; it has jurisdiction over certain actions over which domestic law cannot preside. In most cases, the state has become the criminal entity, committing or being complicit in particularly heinous human rights violations, the character of which will be explained below. In other cases, international jurisdiction attaches because the state is unable to protect the individuals living within its territory from serious attack of a particularly heinous nature by another party. Under these conditions, the salient features – the ones which demonstrate the distinct character of international crime – are the particularly heinous nature of the attack and the form of the offending party, each of which is expressed by one of the two thresholds of international criminal activity which form the human rights thresholds option. The first threshold demands a certain severity of human rights violation. William Schabas acknowledges the development of international criminal law as reflecting a human rights paradigm as international criminal law aims ‘at holding accountable perpetrators of serious violations of human rights’ (2006, p. 424). He argues that ‘it is now well understood that the protection of such core human rights as the right to life y imposes positive obligations upon states. Not only must they refrain from such practices in a direct sense, they must also ensure that individuals who perpetrate atrocities are brought to justice’ (Schabas, 2006, p. 424).10 Although all human rights are important, some are more essential than others. They are the rights that are preconditions to all others. These, the most vital human rights, are those rights to physical security. Without bodily integrity and sustenance, one cannot enjoy any of the other human rights expressed in the UDHR. As Henry Shue argues, No one can fully enjoy any right that is supposedly protected by society if someone can credibly threaten him or her with murder, rape, beating, etc., when he or she tries to enjoy the alleged right. Such threats to physical security are among the most serious and – in much of the world – the most widespread hindrances to the enjoyment of any right. If any right is to be exercised except at great risk, physical security must be protected. In the absence of physical security people are unable to use any other rights that society may be said to be protecting without being liable to encounter many of the worst dangers they would encounter if society were not protecting the rights. (1980, p. 21) The distinction between what is considered a human rights violation and what is an international crime is that an international crime must be a human rights infringement of a certain character, demanding the ultimate protection.11 58



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So, the first threshold that an action must meet is that it is a violation of a physical security human right. For the purposes of this paper, this threshold will be called the severity threshold. The second threshold is that the way in which the physical security human right is violated involves political organization, usually a state. This we will call the agency threshold. The idea is that ‘[w]e are creatures whose nature compels us to live socially, but who cannot do so without artificial political organization that inevitably poses threats to our well-being, and, at the limit, to our very survival’ (Luban, 2004, p. 90). International criminal jurisdiction takes over when there are serious physical security violations associated with political organization. This threshold is an expansion of a theory raised by David Luban in reference to crimes against humanity. His idea is that crimes against humanity violate aspects of humanness pertaining to our political nature. We are political animals in that we need to live in groups, but groups pose a perpetual threat to our individuality and individual interests. ‘The legal category of ‘crimes against humanity’ recognizes the special danger that governments, which are supposed to protect the people who live in their territory, will instead murder them, enslave them, and persecute them, transforming their homeland from a haven into a killing field’ (Luban, 2004, p. 117). He goes on to argue that, The distinguishing feature of crimes against humanity arises from our character as political animals. Each of us is an individual who belongs to groups and who has no alternative to living in politically organized communities; we are all, in effect, hostage to politics. (Luban, 2004, p. 138) Luban and I, therefore, agree that crimes against humanity are international crimes because they originate out of, and attack, a human need to politically organize. In fact, Luban and Richard Vernon offer similar explanations for what it is in the character of crimes against humanity that makes them international crimes, explanations with which I generally concur. International crime arises out of the perversion of political power. ‘The kind of evil in question y relates on the one hand to the necessary institutional prerequisites of an organized project, and on the other to damage suffered by individuals only by virtue of belonging to a group’ (Vernon, 2002, p. 245). This position, interestingly, is in direct opposition to the one proposed by May. May contends that international crime threatens individuality. This perversion argument, on the other hand, claims that it is our associative nature that is at risk. It is ‘because the state [or more generally, any organized political entity with coercive power] is the kind of institution that it is, with the features that it has, that crime against humanity is possible’ (Vernon, 2002, p. 245). r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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Yet, the explanations offered by Luban and Vernon for why crimes against humanity fall under international jurisdiction can, and must, be expanded to lay a foundation for understanding the wider array of international crimes. In fact, although Vernon’s position invites us to understand the heinous nature of international crime in a novel manner, his is even more restrictive than contemporary understandings of crimes against humanity. He ties crimes against humanity essentially to a state’s treatment of its own subjects (Vernon, 2002, p. 248). International jurisdiction can be evoked for all of the categories of international crime listed by the Rome Statute based on a slightly broader interpretation of this understanding of international harm. Therefore, I endorse the Luban and Vernon theories that express the element of humanity in crimes against humanity as political organization. Political organizations allow us to live socially, coordinated and for the most part, safely. However, the expansion of these theories introduced in this paper refines the Luban/Vernon position. The significance of political organization should not be limited to the realm of characterizing what is special about the humanity element in one particular category of international crime. Rather, as Drumbl claims, the ‘interplay between individual action and group membership is central to extraordinary international criminality’ (2007, p. 4). The perversion of political organization is what makes international crime so atrocious as to require the explicit condemnation of the international community. When a serious violation is committed by the political organization – the state – or the state is complicit in it, the international sphere must step in. It is also appropriate for international criminal jurisdiction to apply when the state is unable to protect against systematic attack of its citizens by another politically organized group, such as a rebel group or faction of society with particular aims. In this case, there are two issues for consideration. The first is the character of the criminal activity: does it demonstrate serious physical security violations and perversion of political organization? This consideration represents reflection on subject matter jurisdiction. The second issue is of a more practical concern: must the international community exercise its jurisdiction because the state cannot administer justice itself? International law takes over when the state turns against the individuals under its control or it is unable to protect them from serious physical security violations emanating from perversion of political organization. These crimes are out of the reach of domestic jurisdiction. The state cannot prosecute itself for crimes it commits or for crimes in which it is complicit. Likewise, the state requires the help of the international system to establish justice in cases with which the state is unequipped to deal. International crime is not merely based on the size of the crime, not merely the number of victims. The domain of international criminal law is crime of a distinct nature, and this is reflected in 60



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the classification of international crimes by the Rome Statute of the International Criminal Court. In the following paragraphs, I will demonstrate how the Rome Statute’s crimes meet the two thresholds of the human rights thresholds option. Since to meet the severity threshold the attack must simply be a serious physical security violation, I will focus my attention on establishing how each category of crime meets the agency threshold. There are two truly authentic and distinct categories of international crime: crimes against humanity and war crimes. I will discuss the crime of genocide as a division of crimes against humanity rather than its own category;12 and, I will only briefly point to how this theory might relate to the crime of aggression, yet undefined. War crimes are the easy category. These crimes are ones perpetrated by agents of a state, in the name of a state, or by agents of a similarly highly organized and politicized group. Although international law is not generally concerned with cases of murder or assault (or extensive destruction of private property), when the perpetrator is a state, the best instrument by which to ensure justice is established is international criminal law. As May recognizes, pertaining to these crimes, ‘war crimes are often organized, or at least facilitated, by a State, and then the systematic nature of the war crimes affects an interest of the international community in deterring those crimes’ (2007, p. 42). This does not mean that an international institution must always be employed in these cases, but that international criminal jurisdiction applies and can be exercised as a way to ensure that impunity does not prevail. Crimes against humanity are also more serious examples of domestic crimes: murder, torture (assault) and rape. This category of crime has been recognized as a serious international offense since the early 1900s.13 Originally, the defining element of crimes against humanity was that the brutality was directed at a civilian population. However, the law gradually evolved to recognize that these attacks must also be either widespread or systematic.14 The contemporary definition of crimes against humanity claims these two distinguishing elements: that the attacks are directed against a civilian population and that they are systematic or widespread (Rome Statute, Art. 7). The term ‘widespread’ is generally understood to refer to the large-scale nature of the attack and to the number of victims involved. This is reflected by the International Criminal Tribunals for the Former Yugoslavia and Rwanda in the Tadic case (ICTY Trial Chamber, 07/05/1997, para. 206), the Kunarac case (ICTY Trial Chamber, 22/02/2001, para. 428), the Akayesu case (ICTR Trial Chamber, 02/09/1998, para. 580) and the Musema case (ICTR Trial Chamber, 27/01/2000, para. 204). And so, it is an issue of numbers; a very large number of victims of serious physical security human rights violations prompts international jurisdiction. Why, though, must it be that a large number of victims be incorporated into r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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the description of an international crime? Why does a large number generate international jurisdiction and not simply any victim of a serious physical security human rights violation? It is because generally one victim does not constitute a demonstrated perversion of political organization. A few murder victims (even by an organized gang) do not amount to a crime against humanity, even if the perpetrators are not prosecuted. So, numbers matter, to an extent.15 Sheer numbers satisfy the ‘widespread’ requirement, but what seems more significant as a defining element of crimes against humanity is the systematic one. ‘Systematic’, as opposed to ‘widespread’, does not seem to concern numbers since it is defined by the requirement of an organized pattern or methodical conduct (ICTY Tadic Trial Chamber, para. 648; ICTY Kunarac Trial Chamber, para. 429; ICTR Ntakirutimana Trial Chamber, para. 804; Ntakirutimana and Ntakirutimana, 2003). However, the idea of pattern essentially requires numbers since it can stem from ‘the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another’ while using ‘significant public or private resources’ (Blaskic, ICTY, para. 203). Even so, the systematic requirement is significant primarily because it deems threats by political organization critical. Originally, this element covered cases of states turning on the citizens of neighbouring states (Nazi Germany), then cases in which there were organized unofficial military forces in armed conflict (the Former Yugoslavia), and then the ‘systematic attack’ wording was adopted to cover cases of actions ‘committed through political organization’ (Luban, 2004, p. 97). In these cases, the political organization, a natural human necessity, creates a serious threat for others. All humans of this world have an interest in safeguarding political organization: guarding it from morphing into something threatening, from organized political groups developing into hazardous entities as perpetrators of horrendous crimes or as ready-made and identifiable victims. Political organization is so essential to natural human life that it must be stringently defended against such perversion. Genocide, although considered a separate category of international crime, could be subsumed under the title of crimes against humanity. The case of genocide, ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group’ (Rome Statute, Art. 6), again clearly demonstrates a threat to political relationships. This international crime targets persons for their membership within a group. In these cases, it is involvement in political organization that is threatening. Similarly, the crime of aggression, not yet defined, also meets the agency threshold. The crime of aggression is broadly conceived as an armed attack against a sovereign state in any manner not consistent with the Charter of the United Nations, for defensive or humanitarian purposes. It is a threat delivered 62



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by a political organization, most often attempting to enlarge its geographical territory, against other politically organized individuals. This human rights thresholds option, presented here, offers a characterization of international crime that covers the nature of each of the recognized international crimes. Both thresholds must be met for an action to fit within the jurisdiction of international criminal law. International crimes are the jurisdiction of the international community because they threaten the most basic security human rights and because they emerge from the basic nature of humans as social entities.

The Domain of International Criminal Law Although the normative and descriptive domains of international law and domestic law are distinct, these systems of law overlap in application. Neither system is completely self-contained, but it would also be inaccurate to regard them as components of one system of law in the sense that one takes over where the other leaves off. These two systems must be recognized as independent judicial systems that run in tandem. Often, questions about when international jurisdiction should be exercised will lead to circumstances of overlapping, complementary or conflicting claims of jurisdiction. A good analogy might be loosely based on the American legal system, in which the 50 American states are separate sovereigns with their own constitutions and plenary power to create laws covering anything not preempted by the federal Constitution or federal statutes. Both court systems, the state and the federal courts, have exclusive jurisdiction in some areas and concurrent jurisdiction in others. American federal judicial ‘power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority’ (US Constitution, Art, III, Section 2). The analogy between the American and international legal system would reveal nation-states as sovereign, to an extent. International jurisdiction originates with international treaties and customary law, and oversees crimes, not that affect the international community either because they spill over borders as some theorists argue16 or because they harm the international community by attacking a particular feature of humanity like individuality, but that are the international community’s responsibility because they are so serious a threat to organized life as to warrant such protection. Human rights violations alone do not fall under the jurisdiction of international criminal law. But, human rights violations that satisfy both the severity threshold and the agency threshold threaten a very basic characteristic of the social being that is a human individual, something that falls within the r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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sphere of interests of which it is the responsibility of all persons to protect. And, therefore, they fall under international jurisdiction. What does this distinct domain for international crime mean in practical terms? This distinct domain distinguishes crimes over which international criminal institutions can exercise jurisdiction, although they may not for a number of reasons, including on financial or political grounds. In contemporary practice, international jurisdiction is still the last resort, superseding domestic control only when the national authorities are unable or unwilling to deal effectively with particular crimes. For crimes over which international criminal law can exercise jurisdiction, the international judiciary has a moral obligation to assess the domestic response (assuming that in most cases the domestic response will be appropriate). Many states have incorporated international law in their domestic legal framework, making it seem as though there is more continuity between international and domestic legal domains than this discussion of distinct domains suggests. However, the fact that incorporated international law follows the international doctrine, and aims to meet the standards set at the international level, confirms that there are two very distinct realms of law presiding over global individuals.17 It also confirms the distinct character of the exceptional crime that is international crime. International criminal law is presently still in its infancy and there is some concern that it might evolve into a strong global legal structure that supersedes state sovereignty, and even some aspiration that it will. It would be a mistake to understand the international criminal system in this way. Rather, international criminal prosecuting bodies are an extra layer of protection. Domestic legal systems maintain control over determining, identifying, prosecuting and punishing most crimes, including most human rights violations. And, even when the state fails to meet international standards, the international community does not have the right or the responsibility to interfere by usurping judicial authority. International criminal jurisdiction begins at the identification of particular harms that jeopardize the most basic human rights necessary to enjoy any other rights – physical security human rights – and that arise from the perversion of political organization, itself a supposed protection. For the last 20 years or so, international criminal law has been steadily having more and more significant impact on the world and yet serious normative debates concerning international criminal law are scarce in the discipline of political theory. The attempts at normatively categorizing and restricting international criminal law that have been advanced have been insufficient in defining the specific aim and jurisdiction of this newly pervasive legal system. This article has attempted to offer a better theory, one that is principally consistent with common intuitions about what crimes and which persons ought to be prosecuted under what is considered generally to be a legal 64



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category reserved for the most heinous crimes. In doing so, it has revealed the deficiencies in the theories of two of the most active contemporary theorists writing on the issue of international justice with an eye to criminal law. This theory here offered provides a clear role for international criminal justice: the protection of physical security human rights globally and the safeguarding of political organization from morphing into a threat to vulnerable individuals.

Acknowledgement An earlier version of this article was presented at the Canadian Political Science Association’s (CPSA) Annual Conference (Saskatchewan, 2007). I thank the organizers of the conference for the opportunity to present initial thoughts and the panel discussant, participants and audience for considering the arguments of this article and for offering useful comments. I also extend my appreciation to Valerie Oosterveld and Richard Vernon for their guidance and constructive criticism, and finally to the anonymous referees of this journal for their written comments on earlier drafts of this article.

Notes 1 The approved ICC programme budget for 2007 was h88.87 million euros. See ICC Newsletter, December 2006 #11, available online at http://www.icc-cpi.int/library/about/newsletter/files/ ICC-NL11-200612_En.pdf., at 2 (visited 12 May 2007). 2 We can assume that genocide can be included in this category. 3 Article 24 of the Universal Declaration of Human Rights expresses that, ‘Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay’. 4 Indeed, the Rome Statute provides for the possibility of fines – albeit in addition to imprisonment. 5 The Human Rights Committee, 5 November 1999, acting under Article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, ruled that ‘the facts before it disclose a violation of article 26 of the Covenant’ (International Covenant on Civil and Political Rights), that Canada (a State party) is in violation of the dictate that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. 6 Robinson (1999) quoting: ICTR decision, Prosecutor v Akayesu, Judgement, No. ICTR-96-4-T (2 September 1998), available at: www.un.org/ictr. 7 And, less of a concern for this paper than for the practice of international criminal law, there would be considerable overlap between the categories of crimes against humanity and genocide. 8 I would like to acknowledge one of the anonymous reviewers of this journal for identifying this conflation and its susceptibility to generating confusion. 9 For defense of this position, see: Rawls’ stewardship argument (Rawls, Law of Peoples, pp. 38–39), or Nagel’s political conception of global justice and states (Nagel, 2005). r 2009 Palgrave Macmillan 1470-8914 Contemporary Political Theory

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10 Schabas does, however, include in his list of serious human rights ‘dignity’, a non-physical security human right. 11 Non-physical security harms can be included as an element of international crime, but on their own would not constitute an international crime as such. For an example of damage to public and private property as a charge of war crimes and crimes against humanity in concert with physical security harms and as part of a greater scheme of international crime see: Case No. 5 (Flick Case) – USA vs Friederich Flick et al – Judgement. 12 Although, in substantive international criminal law, genocide is not regarded as a sub-section of crimes against humanity, for the purposes of this paper, it can, generally, be treated as such. Such treatment is not to suggest that the definitions of the crime of genocide and crimes against humanity do not permit significant features that differentiate one category of crime from the other, and it makes no pronouncement on whether one criminal act (such as murder) should or should not be prosecuted under one or both of the Articles outlining individual crimes punishable under international law (see Palombino, 2005). Such treatment is only for efficiency in this paper. Genocide can be seen as a separate, yet very similar and some argue more severe, crime to crime against humanity, and one that requires an additional ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. 13 The concept of this category of crime has been recognized since the 1910s when, on May 28 1915, France, Great Britain, and Russia made a declaration claiming the massacres of the Armenian population in Turkey were ‘crimes against humanity and civilisation for which all the members of the Turkish government will be held responsible together with its agents implicated in the massacres’ (Akayesu Case, 1998). 14 This is reflected by the evolution of caselaw, including the Barbie case in France through to judgments of the ICTY and ICTR, and to the Elements of Crimes of the ICC. 15 There is a distinction to be made between actual numbers and substantiality. In the Krstic genocide conviction, the judgment expressed that although the ‘numeric size of the targeted part of the group is the necessary and important starting point, y the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.’ See: ICTY, The Prosecutor v Radislav Krstic – Case No. IT-98-33-A (19 April 2004, Appeals Chamber). 16 Even the Rome Statute recognizes this position by claiming that ‘such grave crimes threaten the peace, security, and well-being of the world’ in its preamble. 17 An example of this is the Crime Against Humanity and War Crimes Act (CAHWCA) enacted in Canada in 2000 to clarify that the international law definition of crimes against humanity applies in Canada, as opposed to the incorrect double mens rea definition created by the Supreme Court of Canada. The recent judgment of the Canadian Supreme Court in the Mugesera case demonstrates the application of national law to comply with international standards; although Mugesera was a deportation case rather than a criminal trial, what was at issue were the parameters of an incitement to genocide and whether the speech Mugesera made in 1992 (two years before the Rwandan Genocide) fit within these parameters, given the ‘reasonable grounds to believe’ standard. See: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 39 (CanLII), [2005] 2 S.C.R. 100, 2005 SCC 40.

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