I now turn to a more direct discussion of a basic thesis I have been arguing for in this chapter. I start by describing the opposing view.
One approach to the question concerning international crimes and univer- sal jurisdiction is to rely on the notion that some crimes harm humanity as
International Crimes and Universal Jurisdiction 35 a whole whereas other crimes harm states only as the basis for drawing the distinction between crimes against the international community and crimes against states. The idea is a simple one. To answer the question, “Whose busi- ness is it anyway?” we need to know who has been harmed. On this approach, the fact that a certain crime harms humanity as a whole grounds or justifies the jurisdictional claims of the international community over this crime.36In this way, the universal jurisdiction exercised by the international community over international crimes is derived from a logically independent prior claim, namely, that these crimes harm or set back the interests of humanity as a whole, as opposed to those of states only. It is this approach with which I am taking issue here.
I assume that crimes against the international community or humanity as a whole are not victimless crimes in the relevant sense. By this I mean that, even if collective entities, such as humanity as a whole or states, can be made better- or worse-off in a nonreductive way (i.e., in a way that is not reducible to their individual members being better- or worse-off), that is not what the relevant part of international criminal law is fundamentally about. Take genocide, for example. Even if it is the case that the eradication of an entire ethnic group from the face of the earth makes humanity as a whole worse-off in a nonreductive way, it is the harm done to individuals who are killed, persecuted, or denied their group identity in genocidal acts that is the primary concern for international criminal law. Otherwise antigenocide law would be much like historical or cultural preservation laws. I am therefore assuming that it is the harm done to the individual that is the primary subject matter for the distinction between crimes against the international community and crimes against states. On that assumption, if we want to claim that crimes against the international community are crimes that harm humanity as a whole whereas crimes against states harm only states, we will need to explain the difference as based on or derivative of some differences among the cases of harm that are all fundamentally harm done to individuals.37
36May comes very close to taking this approach in seeing the need to articulate what he calls the
“international harm principle.” May’s articulation of the international harm principle is an attempt to account for when the international community or humanity as a whole is harmed by a crime. He uses this principle, however, not so much to justify the jurisdictional claims of international community over international crimes, but more to justify actual prosecutions of such cases in international tribunals. The latter presumably carries a greater burden of jus- tification. May, however, does attempt to account for what constitutes international harm independently of jurisdictional considerations. (See May,Crimes Against Humanity, Ch.5, esp.80–1.) This approach to accounting for international harms is what I take issue with in this chapter.
37One can get to this conclusion also by way of moral individualism, a basic tenet of liberal political theory and a view that is often called “cosmopolitanism.” According to moral indi- vidualism, moral considerations are fundamentally about individuals. In this view, it is the
36 Win-chiat Lee An individual is harmed regardless of the motivation of the harm or whether he or she is harmed as a result of a particular act or a systematic and widespread attempt. An individual is also harmed regardless of whether he or she is harmed as a result of her specific identity as an individual person, as a result of her group identity (e.g., her ethnic identity), or merely as a result of random violence.
When is humanity also harmed and when is the state also harmed as a result of an individual being harmed? When an individual is harmed, other people and social groups are “harmed” or have their interests set back as a result, in a morally relevant sense, only in a derivative way (i.e., only in terms of the moral interest we should take in justice and in each other’s well-being), especially when the harm involves violation of basic human rights and dignity. In this derivative sense, however, whenever an individual is harmed, both states and the international community areequally“harmed” in that the moral interest that we should take in justice and in each other’s well-being is set back by such harm. In this sense, even humanity can be said to be harmed when many people are killed by a domestic, nonstate-sponsored terrorist act, such as the one committed by Timothy McVeigh in Oklahoma City.
Thus, if we want to draw a further distinction between the harm to individ- uals that also harms humanity as a whole, and the harm to individuals that also harms the state but not humanity as a whole, other considerations will have to be introduced. My proposal is that the additional consideration we need is that of the legitimate jurisdiction of these social entities. On my account, some crimes – indeed, most crimes – harm the state and are crimes against statesbecauseeach individual state has the legitimate authority to criminal- ize and adjudicate exclusively most instances of harm perpetrated within its territory and in relation to its nationals. Their status as crimes against states will remain so even if the commission of these crimes in one state, in some cases, has the tendency to “spill over” or spread to others, or if they are com- mitted by agents that are internationally connected, such as members of some international criminal or terrorist organization, or indeed, if they are commit- ted by agents of another state crossing national boundaries. These are cases in which states may have joint interest in Cassese’s sense in suppressing the crime universally. (But recall Cassese’s argument that this does not constitute international crime.) There are also crimes, however, albeit not many, that are crimes against the international communitybecausethe criminalization and adjudication of the harm to individuals involved are not subject to the exclusive criminal jurisdictions of states. On my account, whether a crime is
harm done to individuals that matters morally in a fundamental way. It is important to note that this view does not necessarily subscribe to the claim that social groups cannot be said to be “better”- or “worse”-off in a nonreductive way. Rather, the thesis is that only individual well-being matters morally in a fundamental way.
International Crimes and Universal Jurisdiction 37 against states or whether it is against the international community depends ultimately on who has the legitimate authority or jurisdiction over it. As I have argued in this chapter, neither the egregiousness of a crime nor the universality of the values protected is sufficient to ground the distinction.
One clarification is in order. One can more readily make sense of states’
legitimate jurisdiction because states are the kind of social entities that are political in nature and thus have certain legitimate political functions and authority. It would be a stretch, however, to talk about the international com- munity or humanity as a whole as a political entity with certain relatively well-defined functions and authority, not to mention the fact that, as the mere collection of all states or as the mere collection of all human beings, they are not even particularly robust as social entities. Even though the increase in political organization in the international realm might make it increasingly meaningful to talk about the international community as a political entity, my point is independent of that. In my view, when we refer to the jurisdic- tion of the international community or humanity as whole, we are referring to a jurisdiction that belongs to everyone and every state both collectively and distributively because it belongs to no one in particular. On my account, international crimes proper fall under everyone’s and every state’s jurisdiction almost by default because the reasons for normally subjecting harmful acts to the exclusive territorial and national jurisdictions of states as political entities no longer hold in the case of international crimes proper, but it is still morally important to deal with them in a way that would prevent impunity and pro- vide deterrence. This default position needs to be accounted for, but I do not believe that doing so requires that we think of the international community or humanity as a whole as some kind of political entity with some special function or authority of its own.