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Crimes Against the Sovereign Order: Rethinking International Criminal Justice

  • Ryan Liss (a1)

Abstract

The scope of international criminal jurisdiction poses a fundamental challenge for criminal law theory. Prevailing justifications for the state's authority to punish crime assume the existence of connections between the state and either the criminal or the crime that are not always present in the international criminal context. Recognizing this gap, this Article introduces a new theory of what distinguishes international crimes from domestic crimes and justifies the unusual scope of international criminal jurisdiction. As this Article explains, international crimes are unique in the way they undermine international society's structure as a system of sovereign states.

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For helpful comments and conversations, the author is indebted to Oona Hathaway, Scott Shapiro, Michael Reisman, Julian Arato, Jay Butler, Alejandro Chehtman, Becca Crootof, Lori Damrosch, Markus Dubber, Chris Essert, George Fletcher, MA George, Jeff Gordon, Bec Hamilton, Claudia Haupt, Freya Irani, Joanna Langille, Adi Leibovitch, Anna Lvovsky, Yael Lifshitz, Leora Katz, Lisa Kelly, Lisa Kerr, Benedict Kingsbury, Karen Knop, Steven Koh, Claus Kreβ, Patrick Macklem, Danny Maggen, Margaret Martin, Dave Pozen, Darryl Robinson, Tony Reeves, Cristina Rodriguez, Matt Shapiro, Jim Silk, Hamish Stewart, Anna Su, Malcolm Thorburn, Jacob Weinrib, Katrina Wyman, and others. The author is also grateful for the thoughtful comments from participants at workshops at Yale, Toronto, Columbia, and elsewhere, and from the anonymous reviewers at AJIL. The research for this Article was generously supported by the Pierre Elliott Trudeau Foundation and the Social Sciences and Humanities Research Council.

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1 See, e.g., R. c. Munyaneza, 2009 QCCS 2201 (Can.); R. c. Munyaneza, 2014 QCCA 906 (Can.).

2 See Statute of the International Criminal Tribunal for Rwanda, Annex, UN Doc. S/RES/955 (Nov. 8, 1994).

3 See R. A. Duff, Answering for Crime: Responsibility and Liability in the Criminal Law (2007).

4 See, e.g., Kreβ, Claus, International Criminal Law, M.P. Ency. Pub. Int'l L., para. 15 (2009); Robert Cryer, Håkan Friman, Darryl Robinson & Elizabeth Wilmshurst, Introduction to International Criminal Law and Procedure 4 (3d ed., 2014) (adopting as a working definition the crimes currently tried by international tribunals); Antonio Cassese, International Criminal Law 3 (2d ed., 2008) (discussing the core crimes). However, this question is far from free of debate. See, e.g., William Schabas, Foreword, in Fannie LaFontaine, Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts, at vii (2012); Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime 1 (2005); Kreβ, supra note 4, para. 1. Thus, it is perhaps unsurprising that some leading scholars offer varying definitions of international crime. See, e.g., M. Cherif Bassiouni, Introduction to International Criminal Law, Vol. 1, at 148–49 (2d rev. ed., 2012) (proposing a list of twenty-seven offenses); Cassese, supra note 4, at 3 (adding terrorism and torture to the core offenses).

5 See Rome Statute of the International Criminal Court, Art. 5, July 17, 1998, 2187 UNTS 90 [hereinafter Rome Statute]. The status of the Court's other crime—the crime of aggression—is more controversial than the other three, as I discuss in Part III.

6 See, e.g., Frédéric Mégret, What Sort of Global Justice Is “International Criminal Justice”?, J. Int'l Crim. Just. 1, 5 (2015) (noting “[a]lthough we have come to think of … international criminal justice as typically associated with certain offences such as genocide or war crimes, … the project has at various times been associated with distinct offences”).

7 See Part III infra (discussing these three periods).

8 In a future book-length work, I develop the historical account and the theory of punishment proposed here. See Ryan Liss, Crimes Against the Sovereign Order (Working Draft, Aug. 2019) (on file with author). However, this Article provides the first published account of this argument. The ideas explored in this work build upon: Ryan Liss, Crime at the Limits of Sovereignty: Rethinking International Criminal Justice (Sept. 2018) (unpublished J.S.D. dissertation, Yale University) (on file with author).

9 See Part II infra.

10 See, e.g., Cedric Ryngaert, Jurisdiction in International Law (2d ed., 2015) (surveying the bases for jurisdiction and their status under international law). Criminal jurisdiction can also be based on a passive personality nexus (nationality of the victim), or a protective principle nexus (effect on a vital interest of the state beyond its territory—such as its embassy or its currency), although states rely upon these connections less frequently than territory or nationality.

11 See, e.g., Dickinson, Edwin D., Jurisdiction with Respect to Crime, 29 AJIL Supp. 435, 480, 519, 543 (1935) (noting, inter alia, “[i]t is universally recognized that States are competent, in general, to punish all crimes committed within their territory,” and “[t]he competence of the State to prosecute and punish its nationals on the sole basis of their nationality is universally conceded”). While these nexuses are widely accepted, some states (especially within the civil law tradition) also accept jurisdiction over certain domestic crimes that are not connected to the state by territory or nationality. See id. at 573; Claus Kreβ, Universal Jurisdiction Over International Crimes and the Institut de Droit International, 4 J. Int'l Crim. Just. 561, 567 (2006). As Kreβ suggests, while such jurisdiction might be understood as a form of universal jurisdiction for non-international crimes, it is different in important respects. Among other things, a structure of double criminality is ordinarily required for this form of jurisdiction, while it is specifically rejected in the context of international criminal prosecutions. See, e.g., Charter of the International Military Tribunal (IMT) (Nuremberg Charter), Art. 6(c), in Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (London Agreement), August 8, 1945, 82 UNTS 280. The jurisdiction over these crimes, nevertheless, also raises interesting theoretical questions worth examining further.

12 The International Criminal Court's jurisdiction is ordinarily limited to crimes committed by the nationals of or on the territory of states parties. In the case of referrals by the UN Security Council, the Court can exercise jurisdiction in the absence of such connections akin to the ad hoc tribunals. See Rome Statute, supra note 5, Arts. 12–13.

13 Canada provides a clear example, establishing an exception to the ordinary territoriality requirement of the Canadian Criminal Code for war crimes, crimes against humanity, and genocide. Crimes Against Humanity and War Crimes Act, SC 2000, ch. 24, secs. 7–8 (Can.). See, e.g., R. c. Munyaneza, 2014 QCCA 906, supra note 1, paras. 46–49, 123 (Can.).

14 Ambos, Kai, Punishment Without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution Towards a Consistent Theory of International Criminal Law, 33 Oxford J. Leg. Stud. 293, 297–98 (2013).

15 Cryer, supra note 4, at 85. See also Akahvan, Payam, The Rise, and Fall, and Rise, of International Criminal Justice, 11 J. Int'l Crim. Just. 527, 535–36 (2013) (“The future of this normative empire will be a function of empowering the ICC while also empowering national courts. … In this Empire, The Hague is but one metropole among others.”); Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics 18 (2011).

16 Case Concerning the Arrest Warrant of 11 April 2000, (Dem. Rep. Congo v. Belg.), Judgment, 2002 ICJ Rep. 63, paras. 51, 71–75 (Feb. 14) (joint sep. op., Higgins, Kooijmans, and Buergenthal, JJ.). See also Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie, 78 Int'l L. Rep. 124, 128–29 (Fr. Court of Cassation, Criminal Chamber 1985) (discussing an emerging “international criminal order”).

17 See Part III infra.

18 See, e.g., Cassese, supra note 4.

19 On their persisting status, see, for example, The Princeton Principles on Universal Jurisdiction (2001) (including aggression and piracy as international crimes); Rome Statute, supra note 5, Art. 8bis.

20 International crime described in this way assumes a divide between core international offenses and transnational crimes, such as trafficking in persons and drugs. I follow Neil Boister and others who argue a divide between these categories can be maintained and is conceptually fruitful. See Neil Boister, “Transnational Criminal Law?, 14 Eur. J. Int'l L. 953 (2003); Neil Boister, An Introduction to Transnational Criminal Law 1 (2012); Alejandro Chehtman, A Theory of International Crimes: Conceptual and Normative Issues, in The Oxford Handbook of International Criminal Law *1, *3, *9–*10 (Kevin Jon Heller, et al. eds., forthcoming), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3082869. But see, e.g., Kevin Jon Heller, What Is an International Crime? (A Revisionist History), 58 Harv. J. Int'l L. 353, 407–13 (2017) (challenging this distinction). Despite relying on the distinction here, I recognize jurisdiction over transnational crimes also raises questions concerning authority to punish that demand further analysis.

21 See, e.g., notes 38–39 infra and accompanying text (discussing “interstate justification”).

22 George P. Fletcher, Rethinking Criminal Law, at xix (1978).

23 See Alan Brudner, Punishment and Freedom: A Liberal Theory of Penal Justice, at ix–xi (2009).

24 Id. at ix–xi. See also Antony Duff, Legal Punishment, in Stanford Ency. Phil., sec. 2 (Edward N. Zalta ed., 2013), available at http://plato.standford.edu/entries/legal-punishment (discussing the role of state authority in punishment).

25 George P. Fletcher, The Grammar of Criminal Law: American, Comparative, and International, Vol. 1: Foundations, at 4–5, 153 (2007) (“None of these purposes is legitimate unless it is based on an abstract right of the state to punish offenders.”).

26 See, e.g., Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 170–203 (1907 reprint of 1823 ed, first printed 1780).

27 Michael S. Moore, Placing Blame: A Theory of the Criminal Law 33–35 (1997); Duff, supra note 3; R.A. Duff, Punishment, Communication, and Community (2001).

28 H.L.A. Hart, Prolegomenon to the Principles of Punishment, in H.L.A. Hart, Punishment and Responsibility: Essays in the Philosophy of Law 1 (1978).

29 Fletcher, supra note 25, at 153.

30 See, e.g., Malcolm Thorburn, Punishment and Public Authority, in Criminal Law and the Authority of the State 7, 16–17 (Antje Du Bois-Pedain, Magnus Ulvang & Petter Asp eds., 2017) (arguing criminal punishment cannot be justified on an interpersonal basis). There are other reasons to think that moral or utilitarian explanations of punishment are not sufficient, including the fact that crimes do not seem to be best understood as coextensive with moral wrongs. See id.; Brudner, supra note 23.

31 See, e.g., Thorburn, supra note 30, at 16–17.

32 For those theories examining criminal law as concerning “the justice of coercion,” see Brudner, supra note 23, at 17. Although examining accounts of the justice of coercive authority, I leave aside Raz's influential account of legitimate authority. See, e.g., Joseph Raz, The Morality of Freedom (1986). In doing so, I follow the critique summarized aptly by Fox-Decent, that the Razian account offers a vision that “mediates the relation between persons and reasons, whereas authority, properly understood, denotes a particular kind of relation between persons.” Despite the posture of the Razian account, it does not follow that helping an individual comply with reasons gives that entity the “standing to rule or its subjects duty to obey.” See, e.g., Evan Fox-Decent, Fiduciary Authority and the Service Conception, in Philosophical Foundations of Fiduciary Law 363, 364 (Andrew S. Gold & Paul B. Miller eds., 2014). See also Scott Hershovitz, The Role of Authority, 11 Philosophers’ Imprint (2011) (elaborating this problem); Margaret Martin, Judging Positivism, at ch. 4 (2014) (noting fundamental inconsistencies in Raz's account).

33 See Brudner, supra note 23, at 45–48; Thorburn, supra note 30; Malcolm Thorburn, Criminal Law as Public Law, in Philosophical Foundations of Criminal Law 21 (Antony Duff & Stuart P. Green eds., 2011).

34 Alejandro Chehtman, The Philosophical Foundations of Extraterritorial Punishment (2010); Alejandro Chehtman, Citizenship v. Territory: Explaining the Scope of Criminal Law, 13 New Crim. L. Rev. 427 (2010).

35 Chehtman, supra note 34, at 26–29, 40–42, 52, 56–59. Chehtman's theory is self-consciously territorial (although he also accounts for the protective principle (id. at 70–75)). Brudner, supra note 23, at 22 (discussing interests shared “by all subjects” of a state). Thorburn is slightly ambiguous whether he relies on territory or citizenship, referring to the “state's subjects” and those within the state's “jurisdiction.” Thorburn, supra note 30, at 9.

36 See Andrew Altman, The Right to Punish Crimes Committed Abroad: What Are the Scope and Grounds of a State's Criminal Jurisdiction?, 2 Transnat'l Legal Theory 447, 447 (2011) (noting of the “centuries” of scholarship on the state's right to punish, “[a]lmost all … presuppose[] a typical case of punishment” with a territorial nexus); Darryl Robinson, International Criminal Law as Justice, 11 J. Int'l Crim. Just. 699, 705–06 (2013) (noting international criminal law “complicates [the] picture” assumed by criminal law theory).

37 See Larry May, Crimes Against Humanity: A Normative Account 80 (2005).

38 Such immunity could be understood to flow from concerns regarding self-governance of the population. See, e.g., Chehtman, supra note 34, at 19–29. See also Brownlie's Principles of Public International Law 204 (James Crawford ed., 8th ed. 2012) (locating the doctrinal source of such immunity in territorial sovereignty).

39 See, e.g., Chehtman, supra note 34, at 100–10; May, supra note 37, at 68, ch. 4; Heller, supra note 20, at 400–07.

40 See notes 25–31 supra and accompanying text.

41 Some suggest extending common domestic aims of punishment (e.g. deterrence or moral retribution) to the international sphere despite challenges. See, e.g., Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?, 95 AJIL 7, 10, 31 (2001). Others are skeptical of the ability of international criminal trials to achieve any of the common aims ascribed to criminal punishment. See, e.g., Immi Tallgren, The Sensibility and Sense of International Criminal Law, 13 Eur. J. Int'l L. 561, 594–95 (2002). Some advocate harnessing the law's expressive or didactic capacity as a less “ambitious” aim. See, e.g., Mirjan Damaška, What Is the Point of International Criminal Justice?, 83 Chi.-Kent L. Rev. 329, 330, 345 (2008). A related camp argues that the collective nature of perpetration and victimization that characterize international crimes calls for a distinct penology of mass atrocity. See, e.g., Mark A. Drumbl, Atrocity, Punishment and International Law 8 (2007); Mark Osiel, Making Sense of Mass Atrocity (2009).

42 This leaves unanswered whether any entity can legitimately punish notwithstanding the aims of punishment the scholar advocates. For a similar point, see Robinson, supra note 36, at 704.

43 See supra note 12 and accompanying text. Notably, this does not account for the UN created ad hoc tribunals (or Security Council referrals to the ICC). However, proponents of delegation theory argue that the theory can explain such situations on the premise that states delegate jurisdiction by ratifying the UN Charter and empowering the UN Security Council to create such tribunals.

44 See, e.g., Shlomit Wallerstein, Delegation of Powers and Authority in International Criminal Law, 9 Crim. L. & Phil. 123 (2015); Dapo Akande, The Jurisdiction of the International Criminal Court Over Nationals of Non-parties: Legal Basis and Limits, 1 J. Int'l Crim. Just. 618 (2003). In his foundational contribution, Akande aims to explain how delegation would justify the International Criminal Court's jurisdiction over nationals of non-parties (e.g. the United States). The argument pursued here would not diminish the claim that such jurisdiction is justified. Rather, it would suggest that (if justified) the Court's positive jurisdiction is narrower than it need be, as universal jurisdiction before the Court could be justified. See note 229 infra and accompanying text.

45 My position follows most recent contributions to international criminal law theory. See, e.g., David Luban, Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law, in The Philosophy of International Law 569, 579 (Samantha Besson & John Tasioulas eds., 2010); Ambos, supra note 14, at 299; May, supra note 37; Chehtman, supra note 34, at 132–34.

46 See, e.g., Robert H. Jackson, Report of Robert H. Jackson, U.S. Representative to the International Conference on Military Trials (1949); International Military Tribunal at Nuremberg, Trial of the Major War Criminals, Judgment (Oct. 1, 1946), in 1 International Military Tribunal at Nuremberg, Trial of the Major War Criminals 171, 186, 218–24, 253–55 (1947) [hereinafter Nuremberg Judgment]; UN Secretary General Report Pursuant to Paragraph 2 of the Security Council Resolution 808 (1993), paras. 33–49, UN Doc. S/25704 (May 3, 1993); Prosecutor v. Tadić, Case. No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, para. 97 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995); Herman von Hebel & Darryl Robinson, Crimes Within the Jurisdiction of the Court, in The International Criminal Court: The Making of the Rome Statute—Issues, Negotiations, Results 79, 104 (Roy S. Lee in cooperation with the Project on International Courts and Tribunals eds., 1999) (discussing this consideration in the context of war crimes). See also Michael P. Scharf, The ICC's Jurisdiction Over the Nationals of Non-party States: A Critique of the U.S. Position, 64 L. & Contemp. Probs. 67 (2001) (noting the International Criminal Court's consent framework was “politically expedient,” not legally necessary). Such international tribunals can be distinguished from internationalized or hybrid courts, which are integrated into a state's domestic legal system and may apply a mix of international and domestic criminal law. Such institutions raise a distinct set of questions, which I leave aside here.

47 This interpretation is reinforced by that fact that one of the defining characteristics of international criminal law is that it can be enforced by an entity even if the offense was not prohibited under the criminal law of the nexus state. See, e.g., Nuremberg Charter, supra note 11, Art. 6(2). See also Chehtman, supra note 20, at *3.

48 See, e.g., Luban, supra note 45, at 579; Ambos, supra note 14, at 299; Chehtman, supra note 34, at 132–34.

49 Luban, supra note 45, at 579.

50 The problems with delegating state authority have been examined most thoroughly in the context of private prisons. See, e.g., Alon Harel, Why Only the State May Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions, 14 Legal Theory 113 (2008); Malcolm Thorburn, Judgment, Communication, and Coercion: What's Wrong with Private Prisons, 2 Crit. Analysis L. 234 (2015). See also Malcolm Thorburn, Reinventing the Night-Watchman State?, 60 Univ. Tor. L. Rev. 425 (2010). However, even if we were to view private prisons as legitimate, the delegation entailed in creating an international criminal tribunal would seem to be impermissible. In the context of a private prison, a private entity is simply used to enforce a state-assessed sanction, concerning the breach of the state's laws. The authority exercised by an international criminal tribunal, by contrast, involves a delegation to (1) determine the applicable law (in at least some instances, such as with the creation of the UN ad hoc tribunals), (2) determine if an individual has breached the law, and (3) determine the consequences of the breach. This seems to involve delegating away the very crux of state authority.

51 Indeed, the core question of criminal law theory requires us to ask why the state can justifiably prosecute and punish an individual when it would amount to a crime for any private person to do so. See notes 22–31 supra and accompanying text.

52 In doing so, I loosely follow the interpretivist approach to law and legal interpretation advocated by Ronald Dworkin. See, e.g., Ronald Dworkin, Law's Empire (1986). Such a methodology has been invoked frequently in recent international criminal law scholarship. See, e.g., Larry May, War Crimes and Just War 1 (2007) (describing an effort to discern the “normative foundations” of the law); David Luban, A Theory of Crimes Against Humanity, 29 Yale J. Int'l L. 85 (2004); Tom Dannenbaum, Why Have We Criminalized Aggressive War?, 126 Yale L.J. 1242, 1252–53.

53 See, e.g., Duff, supra note 27, at xv–xvi (an account of this sort “must always begin from actual human practice” but “must also return to practice” offering critical insight). I return to this point below in Part III.

54 See Dworkin, supra note 52.

55 This is not a prerequisite for a theory of punishment beyond the nexus state in the abstract. Universal jurisdiction for all crimes is one possible approach. See R.A. Duff, Responsibility, Citizenship, and Criminal Law, in Philosophical Foundations of Criminal Law 125, 133–35 (R.A. Duff & Stuart Green eds., 2011) (suggesting this reading of Moore and noting shortcomings). But distinctiveness is required for an explanation of international criminal law as it currently exists, and for an account which accepts that the authority to punish international crimes is justifiably different from domestic criminal law (as those discussed in Part II do).

56 See, e.g., Dworkin, supra note 52 (discussing the importance of coherence across the law); Barbara Baum Levenbook, The Role of Coherence in Legal Reasoning, 3 L. & Phil. 355 (1984). See also Dannenbaum, supra note 52, at 1252–54 (making a similar point regarding the importance of coherence with respect to the crime of aggression). Breadth “do[es] much of the work in distinguishing between better or worse accounts, but [is] not a minimum essential criteria.” Id. at 1253.

57 Luban, supra note 45, at 571 (describing international crimes are “quite literally, crimes against humanity”). See also Luban, supra note 52, at 90 (advocating “treating ‘humanity’ as an operative concept with intelligible, normative content, and not just a placeholder in a legal term of art”).

58 See Antony Duff, Can We Punish the Perpetrators of Atrocity?, in The Religious Responses to Mass Atrocity: Interdisciplinary Perspectives 79, 87–88 (Thomas Brudholm & Thomas Cushman eds., 2009) (discussing this distinction).

59 For Duff, “punishment” is secondary to the trial. See, e.g, Duff, supra note 55, at 130 (“A criminal trial … is not just a procedure through which punishments are allocated. … [It is] a process through which alleged offenders are called to answer or to account.”).

60 Antony Duff, Authority and Responsibility in International Criminal Law, in The Philosophy of International Law 589, 595 (Samantha Besson & John Tasioulas eds., 2010).

61 See id. at 591, 595, 597.

62 Duff, supra note 55, at 131; Duff, supra note 60, at 597–98.

63 Duff, supra note 55, at 136 (describing the “we” that is the rightful community to punish crime as “a ‘we’ consisting in all members of the political community”).

64 Duff, supra note 60, at 598–99. Duff acknowledges two potential explanations for the authority of non-nexus institutions over international crimes, either: (1) authority is delegated from the nexus state; or (2) international crimes represent a distinct category of crimes of concern to a community beyond the state. He concludes that the first is insufficient at least some of the time. See Duff, supra note 58, at 87–88.

65 Duff, supra note 60, at 598, 600–01 (noting it is implausible “to portray humanity as a political community,” but possible to locate “humanity as a moral community” (emphasis in original)). But see Michael Giudice & Matthew Schaeffer, Universal Jurisdiction and the Duty to Govern, in Rethinking Criminal Law Theory: New Canadian Perspectives in the Philosophy of Domestic, Transnational, and International Criminal Law 233, 239 (François Tanguay-Renaud & James Stribopoulos eds., 2012) (noting a tension between Duff's insistence that an impersonal demand for justice is insufficient to justify criminal trials, but acceptance that a call for justice can come from all of “humanity”).

66 Duff, supra note 58, at 88. See also Duff, supra note 60, at 601; Duff, supra note 55, at 140.

67 Duff, supra note 58, at 87.

68 Id. at 89

69 Duff, supra note 60, at 601.

70 Cf. Duff, supra note 55, at 140.

71 See Chehtman, supra note 34, at 128. Cf. Massimo Renzo, Crimes Against Humanity and the Limits of International Criminal Law, 31 L. & Phil. 443, 459–60 (2012).

72 Duff, supra note 60, at 598; Duff, supra note 58, at 87.

73 This approach seems inconsistent with his insistence that all crimes must be offenses against a particular normative community to which the offender is called to answer. It is particularly unclear how we might distinguish the community of “humanity” and this additional community offended by “genuinely international crimes.”

74 Thorburn, supra note 30, at 12.

75 May, supra note 37, at 80–82 (emphasis added).

76 Id. at 80.

77 Id. at 82.

78 He argues that group-based harm directly diminishes the individual in this way, and that group-based perpetration is likely to increase the risk of such situations. Id. at 83. The “ideal model” of an international crime is when both group-based harm and perpetration are present (but either is sufficient). Id. at 80, 89.

79 Id. at 85, 82, 88 (noting group-perpetrated crimes are “likely to affect people in non-individualized ways”). Humanity is harmed by such conduct, because humanity has “interests that people be treated primarily as fellow humans rather than according to their subgroup affiliations.” Larry May, Humanity, International Crime, and the Rights of Defendants, 20 Ethics & Int'l Affs. 373, 374 (2006). May sets out a secondary consequentialist argument for international jurisdiction over such crimes. See Massimo Renzo, A Criticism of the International Harm Principle, 4 Crim. L. & Phil. 267, 271 (2010) (distinguishing these arguments). Group-based harms, he argues, are also more likely to “risk crossing borders and damaging the broader international community.” May, supra note 37, at 83, 89. See also id. at 87–90 (noting practical concerns like partiality of the state judging its own conduct). The connection between these instrumental explanations and his international harm principle is not self-evident.

80 See Luban, supra note 52, at 86–90.

81 Luban quotes Kant as describing this quality as our “unsociable sociability”—the “propensity to enter into society, bound together with a mutual opposition which constantly threatens to break up the society.” See id. at 112 (quoting Immanuel Kant, Idea for Universal History from a Cosmopolitan Point of View (1784), reprinted in On History 15 (Lewis White Beck ed. & trans., 1963)).

82 Luban, supra note 52, at 116–17.

83 Id. (describing crimes against humanity as “cancerous politics”).

84 See i d. at 86–90, 124 et seq. (noting this point with respect to Hannah Arendt in particular). See also May, supra note 37, at 84–85 (blurring this distinction).

85 Luban, supra note 52, at 138–39. We all rely on political ordering and are all potential victims of such conduct within our own political community, because we all “have neighbors whose group is not our own.”

86 Id. at 140 (noting that the “interest” in such acts is held by “humanity itself taken severally, not jointly”). His claim here tracks ideas of outlawry.

87 Luban, supra note 52, at 142; Luban, supra note 45, at 571.

88 See Chehtman, supra note 34, at 99–100 (making a similar observation). See also Luban, supra note 52, at 120, n. 35 (distinguishing crimes against humanity from “deeds that municipal systems criminalize”).

89 Luban seems to acknowledge this. See, e.g., Luban, supra note 52, at 117 (describing the quintessential violation of humanity as “attacking [someone] because they breathe”).

90 See May, supra note 37, at 82.

91 May could rely on his distinction between “offending” and “assaulting” humanity. He suggests only egregious acts assault humanity demanding an international trial; non-egregious acts may offend humanity but require only a domestic trial. May, supra note 37, at 85. “Harm to humanity” would then seem irrelevant in distinguishing international crimes, as the relevant distinction would be “egregiousness.” I discuss problems with Gravity Theories below.

92 Luban, supra note 45, at 571–72; May, supra note 80, at 374; May, supra note 52, at 2, 42; Larry May, Aggression and Crimes Against Peace (2008). There are reasons to question the strength of their claims to address the breadth of the field. Luban derives the argument that crimes against humanity attack humanness and humankind from the definition of crimes against humanity in the doctrine. It is unclear how a similar appeal to humanity justifies the punishment of other international crimes, which do not match the elements of this definition. May's attempt to include everything under the heading of humanity may be more than the concept of humanity can bear. Cf. Carl Schmitt, The Concept of the Political 54 (George Schwab trans., 2008).

93 May, supra note 37, at 70.

94 See Chehtman, supra note 34, at 99 (making a similar point); Renzo, supra note 79 (same). The basis for punishment must flow from some other source. For Mill, this comes from his broader conception of utilitarianism. John Stuart Mill, On Liberty 25, 145 (1863).

95 See Luban, supra note 52, at 140. It is unclear why protection is lost on perpetration of these crimes and not all others. If it is due to Luban's conclusion that humankind has an interest in these crimes, why does an interest of others lead to the offender's loss of protection? See Duff, supra note 60, at 602–04.

96 Luban's reliance on vigilante justice is in tension with the fundamental equality of all individuals, which he firmly endorses. See, e.g., Luban, supra note 52, at 111–14, 116–20 (embracing Kant's account of the individual). See also Thorburn, supra note 30 (discussing insufficiency of interpersonal claims to justify punishment in light of the equality of persons).

97 See Duff, supra note 60, at 590–91; Wallerstein, supra note 44.

98 See, e.g., Johan D. van der Vyver, Personal and Territorial Jurisdiction of the International Criminal Court, 14 Emory Int'l L. Rev. 1, 41 (2000) (“The criterion for application of the principle of universal jurisdiction must be sought in the heinous nature of the crime.”). See also Luban, supra note 45, at 572 (“[S]ome scholars … argue [criminal conduct] must meet some threshold level of awfulness … before becom[ing] the legitimate business of the international community.”).

99 See Eugene Kontorovich, The Piracy Analogy: Modern Universal Jurisdiction's Hollow Foundation, 45 Harv. Int'l L.J. 183 (2004) (discussing such accounts). See also Edwin D. Dickinson, Is the Crime of Piracy Obsolete?, 38 Harv. L. Rev. 334, 338 (1925) (connecting the heinous nature of piracy to universal jurisdiction). The analogy is sometimes grounded in other factors, such as the fact that the impugned conduct occurs in jurisdictions that are poorly governed. See, e.g., Willard B. Cowles, Universality of Jurisdiction Over War Crimes, 33 Cal. L. Rev. 177 (1945) (proposing an analogy between piracy and war crimes). Or both factors are combined. See, e.g., Michael P. Scharf, Universal Jurisdiction and the Crime of Aggression, 53 Harv. Int'l L.J. 357, 366–67 (2012). State Failure Theory, below, represents a more robust version of this idea.

100 See, e.g., Scharf, supra note 99, at 366–67; van der Vyver, supra note 98, at 39–41; Kenneth C. Randall, Universal Jurisdiction Under International Law, 66 Tex. L. Rev. 785, 794–95, 803–04 (1988). See also Filartiga v. Peña-Irala, 630 F.2d 876, 890 (2d Cir. 1980) (drawing on the analogy under the Alien Tort Statute).

101 Randall, supra note 100.

102 See id. at 804.

103 This premise must be distinguished from the “gravity” admissibility standard at the International Criminal Court. Rome Statute, supra note 5, Art. 17(d). This admissibility standard determines which international crimes the Court will focus its resources on, not which crimes count as international. But see Margaret M. deGuzman, How Serious Are International Crimes? The Gravity Problem in International Criminal Law, 51 Colum. J. Transnat'l L. 18, 22 (2012) (linking this admissibility standard to the categorization of international crimes as “grave”).

104 Sean D. Murphy, New Mechanisms for Punishing Atrocities in Non-international Armed Conflicts, Melbourne J. Int'l L. 298, 299 (2015). See also deGuzman, supra note 103 (observing gravity is often invoked as the core characteristic of international crimes, but critiquing this approach).

105 See, e.g., Giudice & Schaeffer, supra note 65, at 243–44 (“[T]he grave nature of such crimes is what allows us to say … that states which … choose not to respond are, morally speaking, failing.”). See also Anthony Sammons, The “Under-theorization” of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts, 21 Berk. J. Int'l L. 111, 127 (2003) (describing similar accounts).

106 Giudice & Schaeffer, supra note 65, at 246–47.

107 Id. at 241.

108 Id. at 244–48. They draw this theory of the duty to govern from Leslie Green's account (building on the work of John Finnis). See, e.g., Leslie Green, The Duty to Govern, 13 Legal Theory 165 (2007).

109 Alfred P. Rubin, The Law of Piracy 88–90, 142–43 (2d ed. 1998); Kontorovich, supra note 99, at 214–17. See also United States Department of State, 2 Papers Relating to Foreign Affairs 45 (1865).

110 Rather, as I discuss in Part III, what was distinct about piracy was that its perpetrators neither had state authorization nor saw themselves as under the law or authority of any state.

111 Kontorovich, supra note 99, at 210–29; Kreβ, supra note 11, at 569.

112 See deGuzman, supra note 103, at 65–66.

113 See Luban, supra note 52, at 120 (“Great depravity by itself does not distinguish crimes against humanity from the cruelest deeds that municipal systems criminalize.”).

114 The context in which a crime was committed may well change the character of the crime. However, it is not clear on the existing accounts why the context per se makes one offense more grave than the other.

115 Sammons, supra note 105, at 128.

116 They might respond that this is one of their preliminary “assumptions.” Giudice & Schaeffer, supra note 65, at 235. However, to assume that the gravity of these acts gives rise to a universal interest to address them seems to assume the answer to the core question of international criminal law theory.

117 A precursor to this line of scholarship can be seen in Cowles, supra note 99.

118 Win-chiat Lee, International Crimes and Universal Jurisdiction, in International Criminal Law and Philosophy 15, 31 (Larry May & Zach Hoskins eds., 2009). See also id. at 18 (arguing for “universal jurisdiction for international crimes proper that is based on … how they pertain to the legitimacy of the political authority of states”).

119 Id. at 18–19, 32–33.

120 Id. at 31. Ordinarily, the state requires a monopoly on force in its territory to ensure this “protective function,” which “translates into exclusive territorial and national jurisdictions over crimes.” Id. at 31.

121 Id. at 29.

122 Id. at 32.

123 Id. at 30. In a footnote, he contemplates the possibility of a natural law basis for this duty, grounded in a Lockean pre-political right of all individuals to punish. See id. at n. 35. However, he expresses uncertainty about this route and does not develop it further. See id. at 30.

124 Id. at 37. See also Win-chiat Lee, Terrorism and Universal Jurisdiction, in Intervention, Terrorism, and Torture: Contemporary Challenges to Just War Theory 203, 212–13 (Steven P. Lee ed., 2007). His suggestion in Terrorism and Universal Jurisdiction that the system of states is important for the way it structures interactions among individuals is a promising one, with parallels to the theory I propose below. However, I leave it aside here because he ultimately suggests it “will not explain why … genocide, torture, and crimes against humanity are … subject to universal jurisdiction.” Id. at 211–12. The core of his argument on universal jurisdiction (consistent with his later scholarship) rests on the premise that universal jurisdiction “is justifiable … as it addresses the problem of impunity as a concern of justice.” Id. at 209.

125 Lee, supra note 118, at 32. Such institutions address “most directly and effectively the concern about the impunity of perpetrators acting on behalf of the state for serious harm … and in this way also provides deterrence of such harm.” Id. at 30.

126 See, e.g., id. at 18 (international crimes as “serious harm”); id. at 19 (international crimes as “serious crimes” and “serious harms”); id. at 29 (state dysfunction as allowing “harm” to its citizens).

127 See, e.g., Andrew Altman & Christopher Heath Wellman, A Defense of International Criminal Law, 115 Ethics 35 (2004). Moreover, there is also reason to think that “harm” is a poor metric to determine what should count as crime. See, e.g., Arthur Ripstein, Beyond the Harm Principle, 34 Phil. & Pub. Affs. 215 (2006).

128 Moreover, this is not what Lee has in mind: he suggests the category would largely track a subset of crimes against humanity and genocide.

129 Lee, supra note 118, at 37.

130 Id. at 33 (noting his account leads to the “counterintuitive result that [the category of international] crimes are primarily crimes committed by a state on its own territory, but not their cross-border counterparts”). In cross-border contexts, the territorial state (i.e., the victim state) may retain legitimate authority and exclusive jurisdiction to punish.

131 See id. at 26–27.

132 See notes 25–31 supra and accompanying text.

133 Lee notes in passing several times that non-nexus institutions must prosecute “justly.” To the extent that adherence to procedural fairness is seen to justify the right to punish, this raises the same concerns discussed above with respect to Luban's theory.

134 Chehtman sets out his framework in Hohfeldian terms, and I follow him here for precision. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16 (1913).

135 See Chehtman, supra note 34, at 26–29, 30–33, 36–43, 52 (discussing why the right to punish is restricted to the state).

136 Id. at 40–41; Alejandro Chehtman, Contemporary Approaches to the Philosophy of Crimes Against Humanity, 14 Int'l Crim. L. Rev. 813, 832 (2014). That it contributes to their “dignity and security,” he states, is an “empirical claim that will have to be taken at face value.” Id. at 832; Chehtman, supra note 34, at 40.

137 Chehtman, supra note 34, at 52–53.

138 Id. at 19–29. Moreover, prosecution of the crime in a foreign state would not “ground the belief” that the criminal prohibition is in force in the territorial state as necessary to justify a power to punish. Id. at 40.

139 Id. at 100–10, 133 (explaining how these three crimes fit his definition).

140 Id. at 100–01; Chehtman, supra note 136, at 833.

141 Chehtman, supra note 34, at 105–06.

142 Id. at 100.

143 See id. at 101–07. For Chehtman, this is where the “moral egregiousness” of the acts comes into play. The community's interest in foreign prosecution will only outweigh its interests in self-governance where the acts at issue involve “violations of fundamental rights.” Widespread and systematic “morally egregious” conduct such as assault would be an international crime justifying the nexus state's loss of exclusive jurisdiction; widespread and systematic bicycle theft would not be. Id. at 103.

144 Id. at 133 (arguing “individuals in different parts of the world have a collective interest in there being a legal system in force prohibiting international crimes”).

145 Id. at 119–20.

146 See also Guyora Binder, Authority to Proscribe and Punish International Crimes, 63 Univ. Tor. L.J. 278, 298 (2013) (noting that Chehtman “ignores the ability of national legal systems to credibly restrain official abuse”). See also id. at 293, 298 (questioning whether international crimes are really different from domestic ones in this respect).

147 Chehtman, supra note 34, at 119.

148 Chehtman, supra note 136, at 821. And indeed, if an equivalent interest exists it could be seen to justify universal jurisdiction over all domestic crimes, except where a state's interest in self-governance prevents this. This would render Chehtman's discussion of what justifies an international power to punish redundant. See also Altman, supra note 36, at 452 (making a similar point regarding “failed states”). In recent work, Chehtman partially embraces this point: see Chehtman, supra note 20, at *18–*20.

149 With regard to the criteria of breadth, Chehtman does not purport to justify the status of all international crimes recognized in the doctrine; like Lee, he frames his account as a critique of the scope of extraterritorial jurisdiction. His account from first principles justifies international jurisdiction over crimes against humanity, genocide, and war crimes, and does not speak to the status of piracy or the crime of aggression.

150 See Altman, supra note 36, at 449, 453 (discussing the need to determine what interests of the individual are “sufficient” to place another under a duty).

151 Chehtman observes that the interests of these victims “might be considered sufficiently important” to justify this power; however, further explanation is necessary for why this is so. Chehtman, supra note 34, at 119–20 (emphasis added). See also id. at 61 (dismissing the interests of foreign victims as irrelevant in domestic criminal law).

152 See note 137 supra.

153 Chehtman, supra note 34, at 48–49 (noting that “[t]he consequences that legal punishment … are simply too severe, too profound to be outweighed by the interest of having a system of criminal laws in force”; thus, an additional explanation is necessary).

154 Id. at 51–53.

155 This overview of the history glosses over important nuances of historical change; the development and periodization of the field were not as clean as portrayed here. However, the patterns of change and the inflection points I examine are nevertheless helpful in demonstrating the shifting conception of international criminal law.

156 Georg Schwarzenberger, The Problem of an International Criminal Law, 3 Current Legal Probs. 263, 264–74 (George W. Keeton & Georg Schwarzenberger eds., 1950).

157 Id. at 272.

158 Id. at 272–73.

159 See, e.g., M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 8 (2011). See also M. Cherif Bassiouni, The Discipline of International Criminal Law, in International Criminal Law: Sources, Subjects, and Contents 3 (M. Cherif Bassiouni ed., 3d ed. 2008).

160 See Cassese, supra note 4, at 11–12 (emphasis in original).

161 This is why I did not examine such accounts in Part II.

162 Indeed, for Cassese, the fact of universal jurisdiction is a descriptive feature of international crime, not a status that is justified on the basis of its status as an international crime. Cassese, supra note 4, at 11–12. On the need to go beyond explaining what has been criminalized to explain what should be, see Chehtman, supra note 20, at *2.

163 The content of “sovereignty” as a standard is a much debated, as are arguments concerning its development over time. See, e.g., Stephen D. Krasner, Sovereignty: Organized Hypocrisy (1999). I do not suggest that the idea of sovereignty was fixed throughout each period, nor that the changes I point to were the only changes in the idea of sovereignty that occurred. On the idea of sovereignty that I draw on and its role in the international legal system, see, for example, Patrick Macklem, The Sovereignty of Human Rights 33 (2015); Bardo Fassbender, Sovereignty and Constitutionalism in International Law, in Sovereignty in Transition 115, 129 (Neil Walker ed., 2003).

164 Arnulf Becker Lorca, Universal International Law: Nineteenth-Century Histories of Imposition and Appropriation, 51 Harv. Int'l L.J. 475, 475 (2010); Onuma Yasuaki, When Was the Law of International Society Born? – An Inquiry of the History of International Law from an Intercivilization Perspective, 2 J. Hist. Int'l L. 1, 7, 64 (2000) (noting prior to this consolidation “[w]hat existed … was the coexistence of European international law, the sy'ar, the Sinocentric tributary system and other regional normative systems, all of which had only limited local validity despite their universalistic claims”).

165 Onuma, supra note 164, at 24. The idea of a “universal” law should not be thought to be neutral; this law was derived in large measure from European tradition, was forced upon other communities, and often legitimated the subjugation of these other communities. However, as scholars have increasingly noted, the development of a global international law was also characterized by a dialogic process between colonized and colonizer. Lorca, supra note 164, at 477; Antony Anghie, Imperialism, Sovereignty and the Making of International Law 6–7 (2005); Lauren Benton, Legal Spaces of Empire: Piracy and the Origins of Ocean Regionalism, 47 Comp. Stud. Soc. & Hist. 700, 722–23 (2005); David Kennedy, International Law and the Nineteenth Century: History of an Illusion, 17 Quin. L. Rev. 99, 127–28 (1998).

166 Revisionist accounts have challenged the traditional view, which draws a linear connection between the ancient outlawing of piracy and the contemporary ideas of universal jurisdiction. They suggest piracy's status as a crime subject to punishment beyond the nexus state is of more recent vintage. See, e.g., Rubin, supra note 109, at 16–19, 37–39; Janice E. Thomson, Mercenaries, Pirates, and Sovereigns (1996).

167 S.S. Lotus (Fr. v. Turk.), Judgment, 1927 PCIJ (ser. A) No. 10, at 70–71 (Sept. 7) (diss. op., John Bassett Moore, J.). The status of piracy as an international crime is admittedly controversial. A vast literature points to piracy as the first “international crime” or an example par excellence of international criminal law. See, e.g., M. Cherif Bassiouni, Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice, 42 Va. J. Int'l. L. 81, 108 (2001); Michael P. Scharf & Thomas C. Fischer, Foreword, 35 New Eng. L. Rev. 227, 228 (2001). Others, however, are skeptical of piracy's status as an international crime and the historical record associated with it. See, e.g., Kontorovich, supra note 99; Benton, supra note 165, at 701; Lauren Benton, Toward a New Legal History of Piracy: Maritime Legalities and the Myth of Universal Jurisdiction, 23 Int'l J. Maritime Hist. 225, 225–26 (2011).

168 Kennedy, supra note 165, at 128.

169 For the canonical statement of the character of sovereignty as this era came to a close: Island of Palmas (Neth. v. U.S.), 2 RIAA 831, 838 (1928).

170 Kennedy, supra note 165, at 119 (noting “dramatic transformation” in international law reflecting changing sovereignty); Jordan Branch, The Cartographic State: Maps, Territory, and the Origins of Sovereignty 31–32 (2013) (noting the 1815 Congress of Vienna “saw the final termination of the complex overlapping and shared authorities” and a move toward a single territorial conception of the state); Jennifer Pitts, Empire and Legal Universalism in the Eighteenth Century, 117 Amer. Hist. Rev. 92, 118 (2012) (noting “[a]n increasingly hegemonic understanding of the international realm as made up of free, equal, and independent states eclipsed the earlier, more complex legal landscape of corporate polities and dependent and divided sovereignty”). Problematically, these developments were connected to a positivist conception of international law that excluded the sovereign status of non-Western communities: see, e.g., T.J. Lawrence, The Principles of International Law 136 (1895). See also Anghie, supra note 165, at ch. 2 (discussing this point).

171 Thomson, supra note 166, at 107–08.

172 Id. at 117. See also Kennedy, supra note 165, at 128; Benton, supra note 165, at 721.

173 William Edward Hall, A Treatise on International Law, at sec. 81 (231) (2d ed. 1884). See also U.S. v. Klintock, 18 U.S. (5 Wheat.) 144, 152 (1820).

174 The pirate's conduct was different from permissible uses of force between states at sea in that it lacked state authorization. The pirate's conduct was also different from other crimes on the high seas; these were conceived to take place within the state system (and punished by the state with a nationality nexus to the perpetrator or victim, or territorial nexus to the flag state).

175 Kennedy, supra note 165, at 128.

176 See Robert Elliot Mills, The Pirate and the Sovereign: Negative Identification and the Constitutive Rhetoric of the Nation-State, 17 Rhet. & Pub. Affs. 105, 122 (2014). Cf. Michael Kempe, “Even in the Remotest Corner of the World”: Globalized Piracy and International Law, 15001900, 5 J. Glob. Hist. 353, 354 (2010) (“[I]n the international confrontation with ‘piracy,’ we can observe the formation of central features and basic structures of modern interstate relations and international law.”).

177 This became even more true when sovereignty was consolidated in territorial states in the prior century. As a result, Kennedy observes, the possibility of “private war”—accepted in a variety of forms for centuries prior—no longer seemed “plausible.” “[W]ar bec[ame] what sovereigns do; it [was], in fact, the ultimate expression and prerogative of a new public sovereignty.” Kennedy, supra note 165, at 127.

178 See, e.g., Georg Schwarzenberger, The Rule of Law and the Disintegration of International Society, 33 AJIL 56, 68 (1939).

179 See Oona A. Hathaway & Scott J. Shapiro, The Internationalists: How a Radical Plan to Outlaw War Remade the World (2017).

180 Treaty Between the United States and Other Powers Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 94 LNTS 57. See also Henry Stimson, U.S. Sec'y of State, The Pact of Paris: Three Years of Development, Address before Council on Foreign Relations (Aug. 8, 1932), in 11 For. Aff. Supp. 1 (1932) (setting out the “Stimson Doctrine,” calling for non-recognition of territorial acquisition through force because of the Pact); Quincy Wright, The Stimson Note, 26 AJIL 342, 342 (1932) (discussing the impact of the doctrine).

181 See Hathaway & Shapiro, supra note 179.

182 Opening Statement of Sir Hartley Shawcross at the Nuremberg International Military Tribunal (Dec. 4, 1945), in 3 Trial of The Major War Criminals Before the International Military Tribunal 91, 99 (1947). We can see the maturation of this conception of the international legal order in the UN Charter, which treats securing peace between states as the primary organizing principle of international relations: UN Charter, Art. 1(1).

183 Efforts to try Germany's Kaiser Wilhelm II for waging war after World War I failed, inter alia, because the Allies recognized such an act was not, in fact, a violation of international law and could not be the basis for international criminal responsibility. The closest the Allies could come was to call for trial, not for violating international law through war, but for the Kaiser's violation of “international morality and the sanctity of treaties.” The Treaty of Peace Between the Allied and Associated Powers and Germany, and Other Treaty Engagements signed at Versailles, Art. 227, June 28, 1919, [1919] UKTS 4; Report of Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, 14 AJIL 94, 118 (1920).

184 Nuremberg Judgment, supra note 46, at 186. See note 178 supra and accompanying text (discussing the status of war after World War I).

185 See, e.g., Shawcross Opening Statement, supra note 182, at 99. See also Jackson, supra note 46, at 299. There was of course substantial debate concerning the legality of this claim: see Liss, supra note 8 (examining the competing views of the time).

186 As I explore elsewhere (see Liss, supra note 8), war crimes have an extensive history of prosecution before this period, but largely on the basis of ordinary principles of jurisdiction. See, e.g., John Fabian Witt, The Laws of War in American History: Lincoln's Code (2012). Thus, this practice did not raise the same questions of authority to punish.

187 Notably, the perpetrator did not need to be on the side of the aggressor. However, such crimes would necessarily be associated with an illegal war, as—after the removal of the right to wage war in the Pact (and the UN Charter)—one side of an interstate war was necessarily the aggressor.

188 Jackson, supra note 46, at 330–31. See also Helen Brady & Ryan Liss, The Evolution of Persecution as a Crime Against Humanity, in 3 Historical Origins of International Criminal Law 429 (Morten Bergsmo, Wui Ling Cheah & Tianying Song eds., 2015).

189 See, e.g., U.S.A. v. Ernst von Weizsaecker et al., 13 Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council Law No. 10 1, 116–17 (1952) (refusing to grant jurisdiction over pre-war acts, contrary to the wording of Control Council Law No. 10). See also Kevin Jon Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law 235–36 (2011) (discussing the jurisprudence of the Nuremberg Military Tribunals limiting jurisdiction over crimes against humanity to instances connected to war, in all cases where jurisdiction was actually at issue).

190 See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Arts. 146–48, Aug. 12, 1949, 75 UNTS 287 (restricting punishment to “grave breaches,” which only occurred in international armed conflict). As Pictet noted in his commentary on the Conventions, the justification for jurisdiction over such crimes was closely tied to relationship with interstate war. Such offenses, he observed, “cause a certain difficulty in the relationship between peoples and may aggravate still further the dissensions which led to the state of war, thus making the re-establishment of peace more difficult.” The Geneva Conventions of 12 August 1949: Commentary: IV Geneva Convention: Relative to the Protection of Civilian Persons in Time of War: Commentary 588 (Jean S. Pictet ed., 1958) (connecting the Convention to the International Law Commission's work on the Draft Code of Offenses).

191 On the shift in popular memory of Nuremberg in recent decades, see David Luban, Legal Modernism: Law, Meaning, and Violence 336 (1997).

192 Initially, however, the concept of international human rights was deeply tied to the organizing principle of the prior period: peace. Consistent with the centuries’ old idea of liberal peace, during the drafting of the UN Charter and its aftermath, proponents suggested that human rights were of international concern because peace within the state (through rights protection) led to peace abroad. See, e.g., Closing Plenary Session of the United Nations Conference on International Organization (June 26, 1945), in 1 Doc. UN Conf. Int'l Org. 710 (remarks of Field Marshall Jan Smuts, The Chairman of the Delegation of the Union of South Africa). See also Kirsten Sellars, The Rise and Rise of Human Rights, at ix–x (2002).

193 The codification of international human rights law took place through several steps over the subsequent decades. However, as Samuel Moyn observes, the internationalization of human rights in its contemporary form largely occurred in the 1970s. Moyn also explains that the post-War (and particularly post-1970s) ideas of human rights were distinct from prior constraints on sovereign authority. See Samuel Moyn, The Last Utopia: Human Rights in History (2012).

194 W. Michael Reisman, Sovereignty and Human Rights in Contemporary International Law, 84 AJIL 866, 876 (1990).

195 See, e.g., Francis M. Deng, Protecting the Dispossessed: A Challenge for the International Community (1993); Francis M. Deng, Frontiers of Sovereignty: A Framework of Protection, Assistance, and Development for the Internally Displaced, 8 Leiden J. Int'l L. 249 (1995); Int'l Comm'n on Intervention & State Sovereignty, The Responsibility To Protect, at para. 2.14 (2001). The idea drew on the proposals of UN Secretary Generals earlier in the decade and UN practice. See, e.g., UN Secretary-General Report on the Work of the Organization, at 5, UN Doc. A/46/1, Supp. No. 1 (Sept. 13, 1991); UN Secretary-General, An Agenda for Peace, UN Doc. A/47/277 (June 17, 1992). The concept was codified in 2005 World Summit Outcome, GA Res. 60/1, para. 138 (Oct. 24, 2005). See also Luke Glanville, Sovereignty and Responsibility to Protect: A New History (2014) (discussing the development of the concept).

196 See, e.g., Deng, Protecting the Dispossessed, supra note 195, at 14–17, 20; ICISS Report, supra note 195, at paras. 1.35, 2.14–.15.

197 Deng, Protecting the Dispossessed, supra note 195, at 13.

198 See Oona Hathaway, Julia Brower, Ryan Liss, Tina Thomas & Jacob Victor, Consent-Based Humanitarian Intervention: Giving Sovereign Responsibility Back to the Sovereign, 46 Cornell Int'l L.J. 499, 529–30, 538–40 (2013).

199 This conception of the state was, of course, not entirely novel; it drew on intellectual precedents concerning the purpose of sovereignty from Bodin to Vattel. See, e.g., Jean Bodin, Six Books of the Commonwealth, bk. I, ch. VIII (M.J. Tooley trans., 1955 [1576]); Thomas Hobbes, Leviathan 144, ch. XXI, para. 21 (Edwin Curley ed., 1994). The idea that sovereignty as responsibility represents a novel organizing principle of the sovereign order, builds on important contributions by Teitel and Cohen. See Ruti G. Teitel, Humanity's Law (2011); Jean Cohen, Globalization and Sovereignty: Rethinking Legality, Legitimacy, and Constitutionalism (2012). However, where Teitel and Cohen focus on the rise of human security concerns in international relations generally, I focus on the rise of obligations for the sovereign state to serve as the locus for securing human security under international law.

200 Despite the common narrative, the Cold War was not an era of stasis for international criminal law. See Liss, supra note 8.

201 See, e.g., Rome Statute, supra note 5, Art. 5; R. c. Munyaneza, 2014 QCCA 906, supra note 1 (Can.).

202 Tadić, supra note 46, at para. 97.

203 Id.

204 UN Doc. A/Conf.183/SR.3, para. 30 (June 16, 1998) (remarks of the United Republic of Tanzania at the opening of the Rome Conference). See also UN Doc. A/Conf.183/SR.2, para. 62 (June 15, 1998) (remarks of Canada at the opening of the Rome Conference).

205 Frédéric Mégret, Epilogue to an Endless Debate: The International Criminal Court's Third Party Jurisdiction and the Looming Revolution of International Law, 12 Eur. J. Int'l L. 247, 259 (2001); Samuel Moyn, From Aggression to Atrocity: Rethinking the History of International Criminal Law, in Oxford Handbook of International Criminal Law, supra note 20.

206 The Court's jurisdiction over the crime of aggression was ultimately activated in December 2017—a decade and a half after the court's jurisdiction over its other three crimes began. See ICC ASP, Activation of the Jurisdiction of the Court over the Crime of Aggression, ICC Doc. ICC-ASP/16/Res.5 (Dec. 14, 2017). However, jurisdiction over the crime of aggression remains limited in ways that it is not for the other offenses.

207 Harold Hongju Koh, International Criminal Justice 5.0, 38 Yale J. Int'l L. 525, 539 (2013); Harold Hongju Koh & Todd F. Buchwald, The Crime of Aggression: The United States Perspective, 109 AJIL 257, 261–62 (2015). See also Erin Creegan, Justified Uses of Force and the Crime of Aggression, 10 J. Int'l Crim. Just. 59, 59, 63 (2012) (“There is an inherent awkwardness in placing the crime of aggression next to the other crimes of the Rome Statute, … [because] these crimes require serious, pervasive human suffering before the International Criminal Court's jurisdiction is triggered.”).

208 See, e.g., Dannenbaum, supra note 52; Claus Kreß, Introduction: The Crime of Aggression and the International Legal Order, in The Crime of Aggression: A Commentary 1, 7–8 (Claus Kreß & Stefan Barriga eds., 2017); Frédéric Mégret, What Is the Specific Evil of Aggression?, in 2 The Crime of Aggression: A Commentary 1398 (Claus Kreß & Stefan Barriga eds., 2017). In effect, for some modern advocates of aggression's status as an international offense, the primary international crime of Nuremberg has become the secondary international crime of the contemporary period.

209 Contemporary international crimes can be perpetrated by both state actors and non-state actors. However, judges and scholars have debated whether non-state perpetrators of crimes against humanity must demonstrate “state-like” capacity. For an overview of the debate and an apt resolution, see Darryl Robinson, The Essence of Crimes against Humanity Raised by Challenges at ICC, EJIL:Talk! (Sept. 27, 2011), at https://www.ejiltalk.org/essence-of-crimes-against-humanity-raised-by-challenges-at-icc.

210 Cf. Macklem, supra note 163 (arguing that human rights should be understood as the minimum demands of an international legal order that distributes sovereignty among sovereign states).

211 Cf. Robert Cryer, International Criminal Law vs State Sovereignty: Another Round?, 16 Eur. J. Int'l L 979, 980 (2005) (noting “international criminal law scholars see sovereignty as the enemy”).

212 At Nuremberg, Justice Jackson saw the regulation of war as the core concern of the moment, and a connection to it as a basis to justify the international status of crimes against humanity. See, e.g., note 188 supra and accompanying text.

213 In the Contemporary Era, judges of the ICTY and drafters of the Rome Statute justified the expansion of international criminal law to include war crimes in a non-international armed conflict based on the changing character of the international order. See, e.g., notes 202–203 supra and accompanying text.

214 Over the 1990s, the field of international criminal law came to be substantially occupied by human rights advocates. See Frédéric Mégret, International Criminal Justice as a Juridical Field, 13 Champ pénal/Penal field [Online] at secs. 19–21 (2016), at http://champpenal.revues.org/9284. This may well explain the convergence of the two domains. Or, as Moyn suggests, perhaps the best explanation for the shift away from a paradigm of peace is that dominant powers increasingly came to see “the aggression charge not as a device of achieving a peaceful world but mainly one liable to be abused in ill-considered bids to contest their global dominance.” Moyn, supra note 205.

215 As discussed above, officials and scholars mooted various ways of defining sovereignty as responsibility throughout the 1990s, only to explicitly embrace the concepts of international crime as the conduct sovereigns were required to protect against in 2005. Cf. Cynthia Weber, Simulating Sovereignty: Intervention, the State and Symbolic Exchange (1995) (discussing ideas of intervention in defining sovereignty).

216 Schwarzenberger, supra note 156, at 272–73.

217 “Public Authority” is an adaptation of Malcolm Thorburn's terminology referring to a “public law” account of criminal justice. See Thorburn, supra note 33; Thorburn, supra note 30. See also Brudner, supra note 23; Arthur Ripstein, Force and Freedom: Kant's Legal and Political Philosophy, at ch. 10 (2009); Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (2016).

218 Thorburn, supra note 30, at 9.

219 See id. at 28–30 (distinguishing this claim about law's relationship to equality from claims of the practical necessity of the state for coordination proposed by Locke and Hobbes).

220 Id. at 9. Cf. William Blackstone, Vol. 2 Commentaries on the Laws of England in Four Books, bk. IV, ch. 1 (336) (George Sharswood ed., 1893 [1753]).

221 Thorburn, supra note 30, at 30–31.

222 See Philip Pettit, A Republican Law of Peoples, 9 Eur. J. Pol. Theory 70, 77 (2010). Cf. Ronald Dworkin, A New Philosophy for International Law, 41 Phil. & Pub. Affs. 2, 16–17 (2013) (“[T]he modern question—what justifies coercive political power?—arises not just within each of the sovereign states who are members of the Westphalian system but also about the system itself.”).

223 The premise that these principles should be considered cumulative rather than consecutive is important. Each principle plays a key role in structuring a system which secures the rights of the individual within the state.

224 See, e.g., Ariel Zylberman, Human Rights and the Rights of States: A Relational Account, 46 Can. J. Phil. 291 (2016); Evan Fox-Decent, The Fiduciary Nature of State Legal Authority, 31 Queen's L.J. 259, 273 n. 18 (2005).

225 See, e.g., Ariel Zylberman, Kant's Juridical Idea of Human Rights, in Kantian Theory and Human Rights 27, 39 (Andreas Follesdal & Reidar Maliks eds., 2014).

226 I develop these three premises further in other work, see Liss, supra note 8. See also Dworkin, supra note 222, at 16–17; Evan J. Criddle & Evan Fox-Decent, Fiduciaries of Humanity: How International Law Constitutes Authority (2016); Zylberman, supra note 224.

227 See Criddle & Fox-Decent, supra note 226; Zylberman, supra note 226, at 40.

228 See Thorburn, supra note 30, at 30 (discussing the “moral necessity” of “robust state authority”).

229 This theory might justify the robust public authority of states in collectively setting and enforcing international criminal law as morally necessary, as it does the public authority of states to set and enforce criminal law within the state.

230 See also Criddle & Fox-Decent, supra note 226 (offering a similar idea for other cosmopolitan obligations and international authority); Zylberman, supra note 224 (same).

231 This international authority might be exercised either individually as states or collectively as a group of states through an international tribunal. This suggests that, while international tribunals do not currently exercise universal jurisdiction (see note 43 supra and accompanying text), perhaps it would be normatively legitimate for them to do so. See Alan Brudner, The Evolution of Authority, in Legal Authority Beyond the State 14, 50 (Patrick Capps & Henrik Palmer Olsen eds., 2018) (making a similar claim).

232 Duff, supra note 27, at xviii.

233 For instance, if securing the equality of persons under the law is the fundamental role of (international) criminal law, it offers new resources to critique the often-observed selectivity in the application of international criminal law. Cf. Asad Kiyani, Group-Based Differentiation and Local Repression: The Custom and Curse of Selectivity, 14 J. Int'l Crim. Just. 939, 952–53 (2016) (offering a normative critique of the practice of group-based selectivity informed by the proposed role of international criminal law).

234 I explore this idea further elsewhere. See Liss, supra note 8. On this point, my account shares some premises with Critical Approaches to International Criminal Law and Third World Approaches to International Law. See, e.g., Mégret, Frédéric, International Criminal Justice: A Critical Research Agenda, in Critical Approaches to International Criminal Law: An Introduction 17, 43 (Christine Schwöbel ed., 2014). This is perhaps best demonstrated by Judge Radha Binod Pal's dissent in the Tokyo Trial, which might be viewed as a progenitor of TWAIL scholarship on international criminal law. See U.S.A. et al. v. ARAKI, Sadao et al., Judgment of The Hon'ble Mr. Justice Pal, Member from India (Nov. 1, 1948), in Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments 809, 910 (Neil Boister & Robert Cryer eds., 2008). See also Varadarajan, Latha, The Trials of Imperials: Radhabinod Pal's Dissent at the Tokyo Tribunal, 21 Eur. J. Int'l Rel. 793 (2014) (connecting Pal's critiques to contemporary international criminal law).

235 With respect to the Contemporary Era of international criminal law, my account shares some basic premises with the State Failure Theorists. However, my account, both helps to explain why the internal failure of the state is of global concern (because it ensures our equal status obtains on a global scale), and to explain how the justification for international criminal law in the Contemporary Era fits in the longer arc of the field.

236 Namely, it requires us to ask what other conditions might be necessary to respect our status as free and equal persons on global scale (including potentially social, economic, and cultural rights).

237 The prosecution of international crimes is a means by which the international community can reaffirm and uphold the legal parameters of the international order (a refinement of the expressivists’ claim that international criminal law reaffirms moral parameters).

238 Rome Statute, supra note 5, Art. 17. My theory suggests complementarity is not justified on the basis that the Court should defer to the domestic state whenever possible; rather, where the state is able to address the conduct, the crime should not be viewed as an international crime at all.

For helpful comments and conversations, the author is indebted to Oona Hathaway, Scott Shapiro, Michael Reisman, Julian Arato, Jay Butler, Alejandro Chehtman, Becca Crootof, Lori Damrosch, Markus Dubber, Chris Essert, George Fletcher, MA George, Jeff Gordon, Bec Hamilton, Claudia Haupt, Freya Irani, Joanna Langille, Adi Leibovitch, Anna Lvovsky, Yael Lifshitz, Leora Katz, Lisa Kelly, Lisa Kerr, Benedict Kingsbury, Karen Knop, Steven Koh, Claus Kreβ, Patrick Macklem, Danny Maggen, Margaret Martin, Dave Pozen, Darryl Robinson, Tony Reeves, Cristina Rodriguez, Matt Shapiro, Jim Silk, Hamish Stewart, Anna Su, Malcolm Thorburn, Jacob Weinrib, Katrina Wyman, and others. The author is also grateful for the thoughtful comments from participants at workshops at Yale, Toronto, Columbia, and elsewhere, and from the anonymous reviewers at AJIL. The research for this Article was generously supported by the Pierre Elliott Trudeau Foundation and the Social Sciences and Humanities Research Council.

Crimes Against the Sovereign Order: Rethinking International Criminal Justice

  • Ryan Liss (a1)

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