I have argued that some international crimes are best seen as crimes against states. They become international crimes only because states see the advantage of cooperating with each other (what Cassese calls joint interest) in suppressing these crimes universally. Here I would also add that if there is universal jurisdiction associated with these crimes, it is only due to what one might want to describe as the pooling of all the territorial and national jurisdictions that states have over crimes committed against them.26Universal jurisdiction over these crimes, in other words, is the result of states making available
26The universal jurisdiction resulting from the pooling of territorial and national jurisdictions is presumably more amenable to an account based on the consent of states. However, I am leaving it open that consent may not be the only way of accounting for pooling territorial and
International Crimes and Universal Jurisdiction 29 to each other to exercise, on each other’s behalf, the limited, but exclusive jurisdictions they each individually have over these crimes. In the case of piracy, for example, one can understand the universal jurisdiction associated with this crime as the result of states pooling their jurisdictions over their vessels27and citizens, and making it available for each other to exercise. Such
“jurisdiction pool” makes sense as effective means of law enforcement given the fact that piracy typically takes place on the high seas.
I have also argued that there is a distinct class of international crimes that is more properly considered as crimes against the international community. In this section, I argue that the universal jurisdiction associated with these crimes is in a more intrinsic way related to the nature of these crimes and not merely created out of pooling the territorial and national jurisdictions that states have over them.
What then justifies drawing the distinction between crimes against states and crimes against the international community and subjecting them to fun- damentally different kinds of criminal law regime? This question leads us to political philosophy. Given our analysis above, the question really amounts to this: Why is it justified or even required, when it comes to serious harm perpetrated against individuals by the state through its agents, that such harm be dealt with using a different framework, political or otherwise, than the stan- dard political framework of the state exercising authority over its territory or its citizens?
Put in this way, the question seems to suggest its own answer. The answer is twofold. First, when the state sponsors or condones harm against individuals, especially its own citizens, it indicates a dysfunction or malfunction of the state that violates and compromises its legitimate authority if it does not lead to an outright breakdown in such legitimacy, as in some extreme cases. In sponsoring or condoning harm against individuals, the state has therefore also forfeited its claim to the legitimate authority to handle the accountability for the crimes involvedexclusivelywithin its territory or in relation to its nationals.
Otherwise, in cases involving these crimes, the perpetrators, prosecutors, and judges could very well all come from the same source, namely, the state. The situation is like the fox put in charge of guarding the henhouse. After preying on the hens, the fox needs to be dealt with, but not by the fox itself.
Second, the purpose of criminalization is in part to suppress certain harmful acts by deterrence. When it comes to possible crimes that are sponsored
national jurisdictions in suppressing certain crimes or that consent may not be necessary under some conditions, especially in cases in which the crimes involve significant harm.
27This kind of jurisdiction is sometimes referred to as the jurisdiction of the flag state. It can be seen as an extension of a state’s territorial jurisdiction.
30 Win-chiat Lee or condoned by the state, it would clearly not make sense as deterrence to have such crimes subject to the exclusive jurisdictions of states only. This would amount to asking each state to deter itself from perpetrating harm by threatening itself with punishment – not much of a threat and therefore not much of a means of deterrence either.
Assuming that we have a duty of justice, at least insofar as certain kinds of serious harm are concerned, there is a clear need for an alternate framework, political or otherwise, for dealing with the deterrence of and accountability for international crimes proper because the state is implicated in such crimes.
The international community with universal jurisdiction over international crimes proper, exercised either by each state individually or by the community of states as a whole, is that alternative political framework, provided that they have a sufficiently just and effective process of determining guilt. It addresses most directly and effectively the concern about the impunity of perpetrators acting on behalf of the state for serious harm done to individuals and in this way also provides deterrence of such harm.28 By contrast, the nonpolitical alternative would be something like reverting back to a Lockean state of nature in which the victim of the harm, and presumably anyone else, could seek to exercise his or her own right to adjudicate and punish the perpetrator on his or her own.29The feasibility of this nonpolitical solution, in terms of both accountability and deterrence, in real situations where serious harm is perpe- trated by the state is at best doubtful. In addition, individual enforcement of rights is notoriously problematic also because of questions that could be raised about the reliability of the process an individual would use to determine guilt.
Thus, justice would require that individuals not enforce their own rights and yield to states or international political entities if the latter are willing and able to exercise their universal jurisdiction to adjudicate these cases more reliably.
To be sure, just because the serious harm that is perpetrated against individ- uals is committed by the state’s agent, official or not, does not necessarily mean that the state will not in fact bring the perpetrator to account.30 Nor do we mean necessarily to exclude such a state from doing so when it shows the inter- est, as well as the capability, to bring justice to these cases. In fact, there may be
28I have argued for universal jurisdiction in relation to the concern about the impunity of perpetrators of serious harms at much greater length in “Terrorism and Universal Jurisdiction,”
208–14.
29This is similar to what David Luban refers to as “vigilante jurisdiction” in “A Theory of Crimes Against Humanity,”29(1)Yale Journal of International Law(2004),137–41.
30Cambodia is a case in point. However, it is only with much pressure from the interna- tional community and heavy negotiation with the UN that Cambodia has finally commenced the trial of former state officials who committed atrocities against their own people in an earlier era.
International Crimes and Universal Jurisdiction 31 many good reasons for allowing it to do so.31What we mean to disallow is only the state’s exclusiveclaim to prosecute, adjudicate, and punish these crimes simply because they take place on their territory or involve their nationals.
The state exists at the very least to protect individuals from harm by others.
Its legitimacy in exercising authority depends on its doing a sufficiently good job in providing such protection. To perform its protective function well and, indeed, to serve justice properly, the state needs to have the monopoly of the use of force within its territory and in relation to its nationals. The state’s monopoly of the use of force would include its exclusive authority to prohibit certain behavior and to adjudicate and punish cases of violation of such prohibitions that take place within its territory or involve its nationals.
In terms of both the legislative and the executive aspect of criminal law, this monopoly would translate into exclusive territorial and national jurisdictions over crimes,32but the monopoly of the use of force has conditions in that the legitimacy of state authority has conditions. When a state fails to meet some of these conditions, one could argue that it is no longer entitled to the monopoly of the use of force, at least in matters concerning the state’s failure to meet the conditions of legitimate authority.33 My point is that when it comes to certain serious harm done to individuals that is either sponsored or condoned by the state, the state may no longer hold on to its claim to monopolize the adjudication and punishment of cases concerning the harm as part of its standing legitimate authority.
International crimes proper, in my view, involve the violation of the con- ditions of the legitimate authority of the state.34 The legitimate authority of
31The principle of complementarity in international criminal law that gives preference to national courts in the prosecution and adjudication of international crimes seems to allow precisely for this.
32It is important to note that this monopoly of the use of force exercised by states is not absolute if we allowbothterritorial and national jurisdictions. In cases that involve nationals (as either victims or perpetrators of a crime) from a different state than the state on whose territory the crime is supposed to have taken place, we do have an overlap of different states’ jurisdictions.
I am assuming, however, that this constitutes only a very small portion of criminal cases at best. In addition, one can assume that the overlap of jurisdictions is further limited by the restrictions in the sorts of crimes that are subject to national jurisdiction and by some kind of priority rule.
33Here it is helpful to follow a suggestion made to me by Kristin Hessler that the legitimacy of the state is a matter of degree. A state’s legitimacy may be weakened (but not entirely lost) by the harm it has perpetrated against individuals. We can take that to mean that the state might have to forfeit its exclusive jurisdiction over some matters, but not others.
34Readers will find parallels between some of my arguments in this section and some of the arguments put forward in two recent philosophical accounts of international crimes and crimes against humanity. One is Luban, “A Theory of Crimes Against Humanity,”85–167. The other is Larry May,Crimes Against Humanity: A Normative Account(Cambridge, UK: Cambridge
32 Win-chiat Lee the state is presumably what preempts or overrides the right, as well as the duty, of others to bring about justice in matters under its jurisdiction. In the case of international crimes proper, however, that legitimate authority is com- promised by the serious harm perpetrated against individuals under either state sponsorship or state acquiescence. Therefore, it can no longer act as the preemptory or overriding moral consideration that trumps others’ rights and duties to bring about accountability for these crimes. If other states or some international entities are capable of adjudicating justly cases involving these crimes, they may justifiably assert jurisdiction over them even though they have no connection to the crimes either territorially or through the nationality of either the perpetrators or the victims. In this way, universal jurisdiction over international crimes proper is really nothing more than the corollary of the state’s loss of legitimacy in monopolizing adjudication and punishment, in the form of exclusive jurisdictions, in relation to these crimes.35
What we have accounted for so far are cases of the state abusing its political authority in sponsoring or condoning serious harm done to individuals. How- ever, there are also cases, as I mentioned in the introduction, in which the state does not sponsor or condone the harm, but is neverthelessunableto prevent it and to bring its perpetrators to accountability through a credible process when the harm does occur. Such inability of the state is perhaps a less serious violation of the state’s legitimate authority because the state’s inability does not equal the state’s abusing its political power by participating in the perpetration of serious harm to individuals under its authority. Nonetheless, the failure to provide protection against harm and to bring its perpetrators to proper legal
University Press,2005), especially Chapter4, in which May focuses on what he calls the security principle. Luban’s discussion of jurisdictional issues in relation to crimes against humanity in his article is particularly helpful and influential in the formulation of my arguments in this section.
35If one incorporates what I have proposed here into a natural law framework, with a few things added, my way of thinking about universal jurisdiction turns out to be similar in some ways to John Locke’s way of thinking about natural jurisdiction in the state of nature. In the Second Treatise, Locke writes, “For the Law of Nature would, as all other Laws that concern Man in this World, be in vain, if there were no body that in the State of Nature, had a Power to Execute that Law, and thereby preserve the innocent and restrain offenders, and if any one in the State of Nature may punish another, for any evil he has done, every one may do so. For in that State of perfect Equality, where is no natural superiority or jurisdiction of one, over another, what any one may do in Prosecution of that Law, every one must needs have the Right to do so.”
(Ch.2, S.7) In short, there is no monopoly of enforcement and thus no exclusive executive jurisdiction in the state of nature, according to Locke. On my account, we partially (perhaps very partially) revert back to this situation if a state violates conditions of its legitimate authority by perpetrating harm to individuals under its authority, except that besides individuals, we now also have other states and the collection of states who can also assert jurisdiction to execute the relevant part of the natural law, but only more reliably.
International Crimes and Universal Jurisdiction 33 accountability is still a failure on the part of the state to perform its proper basic function and is thus a violation of the conditions of its legitimacy as political authority, especially if the failure is not simply a matter of occasional lapses. In this way, the state has also forfeited its claim to exclusive jurisdiction over the relevant crimes and has thus opened the door to the universal jurisdiction of the international community over them. This means that serious harm perpetrated by nonstate actors when the state is unable to perform certain of its basic law- enforcement functions properly would amount to international crimes proper.
In other words, these are not crimes against states – not because the state is the perpetrator, but because the state is really an absentee in the relevant way.
Genocide and crimes against humanity (as a special category of interna- tional crimes) when committed by nonstate actors often take place in situa- tions in which the state either has already failed or is in the process of failing, or in civil war situations where the state is not in control of all of its territory if there is still a state to speak of. In fact, in some of the cases of genocide or crimes against humanity, the nonstate actors are often members of groups that exercise de facto authority and function more or less as statelike entities over certain territories. These cases involving nonstate actors, for the purposes of my account, should be seen as no different from the ones involving state agents, official or unofficial, perpetrating similar crimes under state sponsor- ship or acquiescence and thus should be subject to the same treatment insofar as questions about jurisdiction over them are concerned.
The account of international crimes proper I have given here, interestingly, has the counterintuitive result that these crimes are primarily crimes commit- ted by a state on its own territory, but not their cross-border counterparts. On this account, if a crime that is otherwise similar to one of the international crimes proper is committed by a state against the citizens of another state on the latter’s territory (as, e.g., in the case of an international armed conflict), then it is only a crime against the latter state and not one against the entire interna- tional community – that is, unless the latter state has failed or is failing in ways pertaining to the legitimacy of its claim to exclusive jurisdiction over such crimes. (For example, one possibility of the victim state failing or unable to perform its relevant functions is that, as a result of an armed conflict, the perpe- trator state occupies and becomes the de facto political authority of the foreign territory on which the crime is committed.) Hence, on this view, genocide and crimes against humanity (as a specific category of international crimes) as international crimes proper are primarily crimes committed by a state within its own territory and not by a state on a foreign territory, unless that state commits the crimes against a background of the state on the foreign territory being nonfunctional. Similarly, an international terrorist act is primarily a
34 Win-chiat Lee crime against the state that is the victim of the act even when it is carried out by agents of a foreign country or sponsored by a foreign country, unless the victim state has somehow failed in its function as a state. This seemingly para- doxical result highlights once again the fact that international crimes proper, on the account I am proposing, are not most directly about the international nature of certain crimes in the usual sense (i.e., in the sense of involving more than one nation or the crossing of national boundaries).
It is not hard to make sense of this result. Suppose some military officers of state A have committed war crimes against some civilians of state B on the latter’s territory in a war between the two states. If any state, as a result, has thereby forfeited the legitimacy of its claim to adjudicate such crimes exclusively, it would be the perpetrator state, A, but not the victim state, B, assuming that the latter is willing and able to prosecute and adjudicate the crimes in question in a credible way. State B would seem to have been victimized twice if it has somehow forfeited its exclusive territorial jurisdiction over these crimes as a result of the agents of another state crossing borders and committing war crimes on state B’s soil against state B’s citizens. However, that would be precisely what it would amount to on my account if these cross- border war crimes were considered international crimes proper because they would then be subject to universal jurisdiction.
Therefore, when it comes to cross-border crimes such as war crimes and aggression committed against a functional state, either there is no universal jurisdiction associated with such crimes, or, if there is, it would require an account different from the one I have given in relation to international crimes proper. In the case of cross-border crimes, if universal jurisdiction is involved, one possibility again is to appeal to the pooling of exclusive jurisdictions of individual states, supposing that doing so would enhance deterrence and accountability and, hence, the security of states in general, in a way that is not all that different from the appeal to joint interest in universally suppressing piracy through international cooperation. This kind of consideration is partic- ularly pressing in light of the fact that states that are victims of cross-border aggression and war crimes committed by agents of another state, for a variety of reasons, are not always in the best position to bring the perpetrators of such crimes to account or to deter would-be perpetrators from committing them.