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Abstract
This paper argues that cosmopolitan law has been more successfully achieved not by appeal to a supra-state authority or community, but by the development of features of existing treaty law. Specifically, it shows how the International Criminal Court's jurisdiction over serious human rights violations has been extended to the citizens and territories of non-member states – and even to otherwise immune state officials – not by challenging the sovereignty of non-member states directly, but on the basis of member states’ own territorial sovereignty and the universal jurisdiction which they delegate to the Court and to the United Nations Security Council. In light of this, the authors argue that cosmopolitanism is better conceived not as invoking an independent sense of global community that supersedes and constrains state sovereignty, but as an immanent, contingent and creative development of statist criminal law itself, rooted in its principles of state sovereignty.
Acknowledgements
The authors wish to thank Tom Bailey for his particularly insightful and helpful comments on earlier drafts of this paper, and for encouraging us to write on international criminal law for this collection. We have also learned a great deal from Daniele Archibugi's essay, “A Cosmopolitan Perspective on Global Criminal Justice.”Footnote48
Notes
1 M. Koskenniemi, “The Fate of Public International Law: Between Technique and Politics,” The Modern Law Review 70.1 (2007): 5. Discussing Loizidou v. Turkey ECHR, Preliminary Objections, Judgement of March 23, 1995, ECHR Series A (1995), No. 310, 29, 67; and Belilos v. Switzerland, ECHR Judgement of April 29, 1988, Series A (1988), No. 132, 28, 60.
2 D. Archibugi and D. Held, “Cosmopolitan Democracy: Paths and Agents,” Ethics & International Affairs 25.4 (2011): 433–61.
3 The precursors to this tradition can be found in the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), the Special Tribunal for Lebanon (STL), and the earlier International Military Tribunal at Nuremberg (Nuremberg Tribunal) and the International Military Tribunal for the Far East (Tokyo Tribunal).
4 T. Nagel, “The Problem of Global Justice,” Philosophy & Public Affairs 33.2 (2005): 145.
5 D. Akande, “The Jurisdiction of the International Criminal Court over Nationals of Non-Parties: Legal Basis and Limits,” Journal of International Criminal Justice 1 (2003): 618–50; M. Scharf, “The ICC's Jurisdiction over the Nationals of Non-Party States: A Critique of the US Position,” Law and Contemporary Problems 64.1 (2001): 67–127; R. Wedgewood, “The Irresolution of Rome,” Law and Contemporary Problems 64.1 (2001): 193–214; M. Morris, “High Crimes and Misconceptions: The ICC and Non-Party States,” Law and Contemporary Problems 64.1 (2001): 13–66.
6 See, for instance, the discussion of Diogenes of Sinope, who purportedly used to claim that he was a citizen of the world, in D. Laertius, Lives of Eminent Philosophers (n.d.), Book 6, Chapter 104, and Book 7, Chapter 122. Similarly, Plato has the Sophist Hippias say that he regards all men as brothers, in the Protagoras (n.d.), 337c7–d3.
7 I. Kant, “Perpetual Peace,” in Kant: Political Writings, ed. H. Reiss, trans. H. B. Nisbet (Cambridge: Cambridge University Press, 1977), 93–130 (103).
8 Kant, “Perpetual Peace,” 99–102, 106–25. See also R. Fine, “Kant's Theory of Cosmopolitanism and Hegel's Critique,” Philosophy & Social Criticism 29.6 (2003): 613.
9 J. Rawls, The Law of Peoples (Cambridge: Harvard University Press, 2001).
10 S. Moyn, The Last Utopia (Cambridge: Belknap Press, 1970), 176.
11 For what we find to be the most plausible account, see H. Koh, “Why Do Nations Obey International Law?,” Yale Journal of International Law 106 (1997): 2599–659.
12 “Draft Convention on Jurisdiction with Respect to Crime,” The American Journal of International Law, Supplement: Research in International Law 29 (1935): 439–42.
13 Charter of the United Nations [1945] ATS 1/59 Stat. 1031; TS 993; 3 Bevans 1153. Chapter VII grants the United Nations Security Council broad powers to compel states to act in order to prevent “any threat to the peace, breach of the peace, or act of aggression” (Article 39). However, never has the Security Council been granted such broad criminal jurisdictional authority as it currently has under the Rome Statute.
14 Akande, “Jurisdiction of the International Criminal,” 620.
15 Wedgewood, “Irresolution of Rome,” 199–200.
16 Rome Statute of the International Criminal Court 2187 UNTS 90/37 ILM 1002 (1998)/[2002] ATS 15, Article 5.
17 Rome Statute, Articles 12 and 13.
18 The principle of territorial jurisdiction has a long history in international law. See, for instance: “Draft Convention on Jurisdiction with Respect to Crime,” Article 3.
19 Akande, “Jurisdiction of the International Criminal Court,” 621–2.
20 Scharf, “ICC's Jurisdiction,” 70.
21 Scharf, “ICC's Jurisdiction,” 72.
22 SS Lotus (France v. Turkey), 1927 PCIJ (Ser. A) No. 10, 18.
23 Scharf, “ICC's Jurisdiction,” 73–4.
24 Akande, “Jurisdiction of the International Criminal Court,” 624. Scharf, “ICC's Jurisdiction,” 113.
25 Akande, “Jurisdiction of the International Criminal Court,” 621–2. It should be noted that the right of universal jurisdiction is not new and has existed since the nineteenth century for prosecutions of piracy.
26 Such treaties include the Geneva Conventions, the Torture Conventions and the Hostage Convention – that is, International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), August 12, 1949, 75 United Nations Treaty Series 287; United Nations General Assembly, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, United Nations, Treaty Series, Vol. 1465, 85; and United Nations General Assembly, International Convention against the Taking of Hostages, November 17, 1979, No. 21931.
27 Scharf, “ICC's Jurisdiction,” 99–100.
28 European Union: Council of the European Union, Council Framework Decision 2002/475 on Combating Terrorism, June 13, 2002, 2002/475/JHA, Article 9(1); cited in Akande, “Jurisdiction of the International Criminal Court,” 624 n. 34.
29 United States v. Yunnis, 924 F.2d 1086 (D.C. Cir. 1991); United States v. Rezaq, 134 F.3d 1121, 1130 (D.C. Cir. 1998); United States v. Yousef & Ors 327 F.3d 56 (2d Cir. 2003); cited in Scharf, “ICC's Jurisdiction,” 99–103; and Akande, “Jurisdiction of the International Criminal Court,” 624 n. 33.
30 Currently, prominent non-state parties include the United States and Russia, both of which signed but did not ratify the statute; China, which never signed; and, significantly for this discussion, Libya, which never signed; and the Sudan, which never ratified.
31 Rome Statute, 13(b). “A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations.” Such referrals are likely to occur only with respect to events within the territory of non-state parties. See D. Akande, “The Effect of Security Council Resolutions and Domestic Proceedings on State Obligations to Cooperate with the ICC,” Journal of International Criminal Justice 10 (2012): 301.
32 Vienna Convention on the Law of Treaties, Article 34.
33 Charter of the United Nations, Article 39.
34 Akande, “Effect of Security Council Resolutions,” 305–6. For representative examples, see Security Council Resolution 1593 (2005), 2 (granting jurisdiction over the situation in Darfur); and Security Council Resolution 1970 (2011), 5 (granting jurisdiction over the situation in Libya).
35 P. Malanczuk, Akehurst's Modern Introduction to International Law (London: Routledge, 1987), 390.
36 Jurisdictional Immunities of the State (Germany v. Italy: Greece Intervening), Judgement, ICJ Reports 2012, 99.
37 Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v. France), 2008 ICJ Reports, Section 170.
38 Rome Statute, Article 27.
39 D. Akande, “The Legal Nature of Security Council Referrals to the ICC and Its Impact on Al-Bashir's Immunities,” Journal of International Criminal Justice 7 (2009): 333–52 (336). Prosecutor v. Omar Hassan Ahmad Al Bashir, the Pre-Trial Chamber I, March 4, 2009 (ICC-02/05-01/09).
40 Here again, we are not claiming that any state signing the Charter of the United Nations believed they were doing this, but rather that the original delegation of sovereignty has been reinterpreted to include such a waiver.
41 The idea that exclusive jurisdiction does not exist in criminal matters is at least as old as the Lotus case. See note 18.
42 Scharf, “ICC's Jurisdiction,” 75.
43 Nazi Conspiracy and Aggression: Opinion and Judgement 53, Nuremberg Tribunal (US Government Printing Office, 1947).
44 Akande, “Jurisdiction of the International Criminal Court,” 639. This is effectively a restatement of the Nuremberg principle.
45 Regina v. Bow Street Metropolitan Stipendiary Magistrate, ex. Parte Pinochet Ugarte (1999) 2 WLR 272 (HL), 38 ILM 430 (1999); cited in Akande, “Jurisdiction of the International Criminal Court,” 639; Scharf, “ICC's Jurisdiction,” 84 n. 94; United Nations Security Council, Statute of the Special Court for Sierra Leone, January 16, 2002. A similar provision exists in the Statutes of the ICTY and the ICTR (United Nations Security Council, Statute of the International Criminal Tribunal for Rwanda [as last amended October 13, 2006], November 8, 1994; Statute of the International Criminal Tribunal for the Former Yugoslavia [as amended May 17, 2002], May 25, 1993). The ICTY and ICTR were established pursuant to Security Council resolutions whereas the SCSL was established by a treaty between the United Nations and Sierra Leone, without invoking Chapter VII authority.
46 Underhill v. Hernandez, 168 US 250 (1897). The principle is reiterated in Banco Nacional de Cuba v. Sabbatino, 376 US 398 (1964).
47 Eichmann Case, District Court of Jerusalem (Israel) Judgement, December 12, 1961.
48 D. Archibugi, “A Cosmopolitan Perspective on Global Criminal Justice” (paper, “Cosmopolitanism and Conflict” conference, John Cabot University, Rome, October 2013), published in Justice and World Order: Reassessing Richard Falk's Scholarship and Advocacy, ed. G. Andreopoulos and H. F. Chip Carey (London: Routledge, 2016).
Additional information
Notes on contributors
Kevin W. Gray
Kevin W. Gray is Assistant Professor of Philosophy at the American University of Sharjah, United Arab Emirates. His current research focuses on theories of the public sphere and civil society, critical theory, existentialism, the philosophy of law and Western Marxism. He has published articles in various journals, including Philosophy & Social Criticism, Philosophia, Journal of the Philosophy of the Social Sciences and Dialogue.
Kafumu Kalyalya
Kafumu Kalyalya is Research and Teaching Assistant in the Department of International Studies at the American University of Sharjah, United Arab Emirates.