I begin by considering a recent debate about state sovereignty and interna- tional criminal law between Larry May and his critics, Andrew Altman and Christopher Wellman. As we shall see, both May and these critics accept that full state sovereignty is incompatible with the legitimacy of any border cross- ings that are not invited or authorized by the state’s government. Thus, despite adopting different conceptions of state sovereignty, both views maintain that international criminal prosecutions for human rights violations committed within a state’s borders may proceed against the will of the state’s government only when the state itself has forfeited its sovereignty as a result of either failing to protect or actively attacking its citizens.
A. May’s Hobbesian View
In his book,Crimes Against Humanity, Larry May argues for a limited role for international criminal law in ending or redressing human rights violations that take place within a state’s borders. May starts with the observation that “there is no world State that can easily protect individuals from attacks by enemy and competing States.”2 Thus, states are called on to play this role: “Since States are constituted to aim at the social order and to maintain harmonious dealings among the citizens of the State, a kind of moral presumption is given to States: As long as they are conforming to this normative aim, they should not be interfered with by other States. Social stability requires exclusive legal control over a population.”3
In May’s view, a government forfeits its right to block international efforts to protect its citizens if it cannot, or will not, protect the security and subsistence rights of its citizens. As May argues, “Some norms cross borders, as it were.
The most important is the norm that people’s basic security and subsistence rights should be protected from assault, whether at the hands of individuals or governments.”4This is summed up in May’s security principle: “If a State deprives its subjects of physical security or subsistence, or is unable or unwilling to protect its subjects from harms to security or subsistence, a) then that State has no right to prevent international bodies from ‘crossing its borders’ in order to protect those subjects or remedy their harms; b) and then international
2Larry May,Crimes Against Humanity: A Normative Account(Cambridge: Cambridge Univer- sity Press,2005),9. Hereafter May (2005).
3Ibid.,10.
4Larry May, “Symposium: Crimes Against Humanity,”20(3)Ethics&International Affairs (2006),350. Hereafter May (2006).
State Sovereignty as an Obstacle to International Criminal Law 41 bodies may be justified in ‘crossing the borders’ of a sovereign State when genuinely acting to protect those subjects.”5According to this principle, then, international criminal law may take precedence over any state’s domestic decisions to prosecute or not to prosecute crimes against humanity committed within its borders only when the state loses its legitimacy by failing to protect (or itself attacking) its citizens’ security and subsistence rights.
Even where citizens’ security or subsistence rights are violated, and state sovereignty is forfeited, May argues that international prosecutions are not auto- matically justified. The remaining hurdle to such justification is defined by his international harm principle: “Only when there is serious harm to the interna- tional community, should international prosecutions against individual perpe- trators be conducted, where normally this will require a showing of harm to the victims that is based on non-individualized characteristics of the individual, such as the individual’s group membership, or is perpetrated by, or involves, a State or other collective entity.”6 Thus, only in cases in which a state is unable or unwilling to prevent, end, or redress “harms to humanity” within its borders may other states or international institutions actually intervene.
May’s view is, by his own description, “morally minimalist” in that it depends only on fairly conservative moral premises. Indeed, May chooses to work from the Hobbesian perspective in part because its minimalist foundations are, as May notes, “the very standpoint often adopted by realists who claim that there are no moral restraints on a state’s sovereign prerogative, especially in criminal law.”7
In summary, then, May’s view defends a strong but defeasible presump- tion in favor of state sovereignty, such that when states retain full state sovereignty, no international border crossings are permissible, except those authorized or requested by the government itself. However, states may forfeit their sovereignty for failing to protect their citizens, in which case they lose the right to prevent such border crossings, although only the existence of “inter- national harms” will justify actual interventions according to the international harm principle.
B. Altman and Wellman’s View
Andrew Altman and Christopher Wellman critique May’s account for assum- ing that efforts to prosecute human rights abuses may only cross borders in response to “harms to humanity,” which by definition “are not purely inter- nal state matters.” According to Altman and Wellman’s account, May is wrong
5May (2005),68. 6May (2005),83.
7May (2006),349.
42 Kristen Hessler in accepting “the received view,” or the Westphalian conception, of state sovereignty, according to which “international law can reach moral wrongs committed within a state only if those wrongs literally or morally cross inter- national borders.”8 Having accepted the Westphalian conception of state sovereignty, they argue, May has no choice but to attempt to define severe human rights violations that seem to warrant intervention as “harms to human- ity,” or some other kind of international concern. However, it is difficult to show that human rights violations directed at some subgroup of humanity literally, rather than metaphorically, harm humanity itself:
Harm to humanity is a convenient but ultimately unpersuasive fiction. Harm to the international community may be real and sufficient to license prose- cutorial interventions in cases such as waging aggressive war, but that does not yield jurisdiction over genocide or crimes against humanity.9
Altman and Wellman conclude that a more promising strategy would be to jettison the Westphalian conception of sovereignty and allow that interventions may be justified if states fail to protect, or themselves violate, the human rights of their own citizens, whether or not such violations really do constitute an international concern. They describe their own view of sovereignty as follows:
The government rightfully possesses considerable discretion to order the internal affairs of the state, and yet there are moral limits upon how the government can treat the members of the state. These limits are set, in part, by the fact that the government has a responsibility to protect the basic rights of its constituents. Thus, when a government perpetrates or permits the violation of the basic rights of its people, third parties – in this case, other states in the international community – have a moral right, if not a duty, to interfere.10
C. On the Similarities between the Views
David Luban has described the Westphalian doctrine of noninterference as
“the notorious doctrine that sovereign states are above the law and entitled to do anything.” Or, more graphically: “No matter if [State] B is repulsively tyrannical; no matter if it consists of the most brutal torturers or sinister secret police; no matter if its ruling generals make its primary export bullion shipped to Swiss banks. If A recognizes B’s sovereignty it recognizes B’s right to enjoy its excesses without ‘dictatorial interference’ from outside.”11
8Andrew Altman and Christopher Wellman, “A Defense of International Criminal Law,”115 Ethics(2004),42.
9Ibid.,42–3. 10Ibid.,45.
11David Luban, “Beyond Moral Minimalism: Response to Crimes Against Humanity,”20(3) Ethics&International Affairs(2006),353–60.
State Sovereignty as an Obstacle to International Criminal Law 43 May’s view is not, obviously, appropriately located in the Westphalian tra- dition in this sense, and Altman and Wellman are (rightly) not claiming that May’s view makes no improvements over that tradition. For starters, May’s view makes a government’s possession of sovereignty contingent upon its actually protecting the security and subsistence rights of its citizens (even if failure to do so does not automatically justify any particular interventions). May’s view also allows for individuals to be held criminally responsible to the international community, which would not be possible under a traditional Westphalian system.12
Moreover, “international harms” that may justify international interven- tions, as May describes these, can include events that take place entirely within a state’s borders and that do not threaten to spill beyond those borders in any literal way.
Humanity is a victim when the intentions of individual perpetrators or the harms of individual victims are based on group characteristics rather than on individual characteristics. Humanity is implicated, and in a sense victim- ized, when the sufferer merely stands in for larger segments of the popula- tion who are not treated according to individual differences among fellow humans, but only according to group characteristics. . . . The international community thus enters the picture, in order to vindicate humanity through its international legal tribunals.13
According to this description, a genocide that took place entirely within a single state’s borders would count as a harm to humanity.
Recall that May’s case for a limited international jurisdiction over crimes against humanity has two parts: first, the account of sovereignty, including the conditions under which a state forfeits sovereignty, and second, the account of what it takes to justify actual interventions. Regarding the former, May’s view ends up being quite similar to Altman and Wellman’s, insofar as both views make the state’s possession of sovereignty contingent upon its actually protecting the security and subsistence rights of its citizens – a clearly domestic matter. Thus, we can read Altman and Wellman as critiquing May’s reasoning justifying interventions, rather than (at least primarily) taking issue with the substantive recommendations of May’s account. The main difference between the two views is whether the failings or wrongdoing of the state have to be
12“[I]n traditional, or Westphalian, international law, only states have rights and duties. Individu- als are entitled to those rights guaranteed by their political systems and there is no international standard of rights to which they could appeal. Nor are individuals subject to international crim- inal liability since they are under the exclusive jurisdiction of the State on whose territory they live.” (Kenneth Rodman, “Compromising Justice: Why the Bush Administration and the NGOs Are Both Wrong about the ICC,”20Ethics&International Affairs(2006),26.)
13May (2005),83.
44 Kristen Hessler somehow characterized as “international” in character to justify “piercing”
sovereignty to protect the rights of citizens of the offending state, or whether such interventions may be triggered by the same kinds of violations that are characterized as purely internal matters.14