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The Distinct Character of International Crime: Theorizing the Domain

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Contemporary Political Theory Aims and scope

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Abstract

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

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Notes

  1. The approved ICC programme budget for 2007 was €88.87 million euros. See ICC Newsletter, December 2006 #11, available online at http://www.icc-cpi.int/library/about/newsletter/files/ICC-NL11-200612_En.pdf., at 2 (visited 12 May 2007).

  2. We can assume that genocide can be included in this category.

  3. Article 24 of the Universal Declaration of Human Rights expresses that, ‘Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay’.

  4. Indeed, the Rome Statute provides for the possibility of fines – albeit in addition to imprisonment.

  5. The Human Rights Committee, 5 November 1999, acting under Article 5, paragraph 4, of the Optional Protocol to the International Covenant on Civil and Political Rights, ruled that ‘the facts before it disclose a violation of article 26 of the Covenant’ (International Covenant on Civil and Political Rights), that Canada (a State party) is in violation of the dictate that ‘all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’.

  6. Robinson (1999) quoting: ICTR decision, Prosecutor v Akayesu, Judgement, No. ICTR-96-4-T (2 September 1998), available at: www.un.org/ictr.

  7. And, less of a concern for this paper than for the practice of international criminal law, there would be considerable overlap between the categories of crimes against humanity and genocide.

  8. I would like to acknowledge one of the anonymous reviewers of this journal for identifying this conflation and its susceptibility to generating confusion.

  9. For defense of this position, see: Rawls’ stewardship argument (Rawls, Law of Peoples, pp. 38–39), or Nagel's political conception of global justice and states (Nagel, 2005).

  10. Schabas does, however, include in his list of serious human rights ‘dignity’, a non-physical security human right.

  11. Non-physical security harms can be included as an element of international crime, but on their own would not constitute an international crime as such. For an example of damage to public and private property as a charge of war crimes and crimes against humanity in concert with physical security harms and as part of a greater scheme of international crime see: Case No. 5 (Flick Case) – USA vs Friederich Flick et al – Judgement.

  12. Although, in substantive international criminal law, genocide is not regarded as a sub-section of crimes against humanity, for the purposes of this paper, it can, generally, be treated as such. Such treatment is not to suggest that the definitions of the crime of genocide and crimes against humanity do not permit significant features that differentiate one category of crime from the other, and it makes no pronouncement on whether one criminal act (such as murder) should or should not be prosecuted under one or both of the Articles outlining individual crimes punishable under international law (see Palombino, 2005). Such treatment is only for efficiency in this paper. Genocide can be seen as a separate, yet very similar and some argue more severe, crime to crime against humanity, and one that requires an additional ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.

  13. The concept of this category of crime has been recognized since the 1910s when, on May 28 1915, France, Great Britain, and Russia made a declaration claiming the massacres of the Armenian population in Turkey were ‘crimes against humanity and civilisation for which all the members of the Turkish government will be held responsible together with its agents implicated in the massacres’ (Akayesu Case, 1998).

  14. This is reflected by the evolution of caselaw, including the Barbie case in France through to judgments of the ICTY and ICTR, and to the Elements of Crimes of the ICC.

  15. There is a distinction to be made between actual numbers and substantiality. In the Krstic genocide conviction, the judgment expressed that although the ‘numeric size of the targeted part of the group is the necessary and important starting point, … the number of individuals targeted should be evaluated not only in absolute terms, but also in relation to the overall size of the entire group.’ See: ICTY, The Prosecutor v Radislav Krstic – Case No. IT-98-33-A (19 April 2004, Appeals Chamber).

  16. Even the Rome Statute recognizes this position by claiming that ‘such grave crimes threaten the peace, security, and well-being of the world’ in its preamble.

  17. An example of this is the Crime Against Humanity and War Crimes Act (CAHWCA) enacted in Canada in 2000 to clarify that the international law definition of crimes against humanity applies in Canada, as opposed to the incorrect double mens rea definition created by the Supreme Court of Canada. The recent judgment of the Canadian Supreme Court in the Mugesera case demonstrates the application of national law to comply with international standards; although Mugesera was a deportation case rather than a criminal trial, what was at issue were the parameters of an incitement to genocide and whether the speech Mugesera made in 1992 (two years before the Rwandan Genocide) fit within these parameters, given the ‘reasonable grounds to believe’ standard. See: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 39 (CanLII), [2005] 2 S.C.R. 100, 2005 SCC 40.

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Acknowledgements

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

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Fisher, K. The Distinct Character of International Crime: Theorizing the Domain. Contemp Polit Theory 8, 44–67 (2009). https://doi.org/10.1057/cpt.2008.21

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