Humanity, international crime, and the rights of defendants.

May, Larry

I am deeply grateful for this symposium on my work--especially for the kind words from those critics who do not otherwise pull their punches. In what follows, I will try to respond to the very stimulating questions and challenges posed by my critics. These are matters of ongoing interest to me since Crimes Against Humanity is the first of a multivolume work

on the moral foundations of international criminal law. So, the comments are doubly valuable: in getting me to rethink things I wrote, and getting me to formulate new thoughts toward future research.

Let me begin with Andrew Altman's astute commentary. Altman believes in universal jurisdiction, the idea that everyone has a duty to prevent or punish human rights abuses. This idea, originally put forward by Locke, has the capacity to undermine state sovereignty. (1) I, on the other hand, argue for international tribunals with quite limited jurisdiction for addressing only the most egregious human rights violations.

Altman's most significant objection concerns my understanding of crimes against humanity as harming humanity. Crimes against humanity are like hate crimes in that they are crimes committed not merely against individuals but because of the group memberships of individuals. The perpetrator does not focus on the individual characteristics of the victim; rather, the victim is singled out solely because he or she is a member of a hated group. In my view, groups and group membership are a concern of the international community, and they may trigger international prosecution.

My argument rests in part on consequentialist concerns--namely, that violence directed at groups rather than at discrete individuals risks spilling over borders. But more importantly, on nonconsequentialist grounds, to not treat people as individuals is to fail to take their humanity seriously. Altman claims that he does not understand such a position. He writes that if I attack a Muslim because he is a Muslim, then I harm that person, perhaps other Muslims nearby, and distantly all other Muslims in the world, but not members of any other religion. Hence, harming a Muslim simply because he is a Muslim does not harm all of humanity, since at most it only harms all Muslims. On his view, Muslims are different from the rest of humanity, and so harming Muslims, as Muslims, does not clearly harm members of other religions, let alone the whole of humanity.

The response I give to this sort of objection in my book is that if one can attack Muslims with impunity merely because they are Muslims, then one can similarly attack Catholics just because they are Catholics. And doing so means that one can treat people not as individual humans but merely as members of subgroups. Humanity, in a manner of speaking, has interests that people be treated primarily as fellow humans rather than according to their subgroup affiliations. When group-based harm occurs, there is a failure to treat people as humans, and, in this sense, humanity is harmed by such treatment. Despite the conflicting interests of various groups, when group-based harm occurs there is a sense in which humanity is harmed, just as it is true that when a woman is raped merely because she is a woman there is a sense in which all women are put in jeopardy and harmed.

So far, I have been treating harm to humanity as a kind of metaphor. Altman rightly asks whether there is more to it than that. Is there such a thing as humanity, or a human community, much less an international community (all terms I do in fact employ in my book)? Altman writes that humanity is not even like a political community. I agree that this is indeed a problem with my account, and a problem for many others who continue to speak of international law as the law of the international community or of human rights as rights we have as members of humanity. Of course, the key is to figure out if there are interests that are distinctive of humanity. I share Altman's initial skepticism about this issue, since like him I am ultimately a methodological individualist about such things. I would note, though, that Altman's rejection of the idea of the human community does not sit especially well with his otherwise Lockeian account of international criminal law.

Altman and I agree that there is no political community to which all humans belong. Where we disagree, however, is about whether there are significant common interests among the members of actual political communities. The debate between us is not between a libertarian and a cosmopolitan, but in the end between two liberals, broadly conceived. What separates us is merely whether we think that communities have deeply conflicting or only mildly conflicting interests. International law is premised on the idea that all political communities have a strong interest in peace and in the protection of basic human rights, and that such interests are greater than what divides political communities. These are the guiding ideas behind the founding of the United Nations (in the late 1940s) and fifty years later the International Criminal Court (in the late 1990s). Crimes against humanity jeopardize peace and undermine basic human rights. In this sense, crimes against humanity adversely affect the common interests of the political communities of the world. One way to think of harms to humanity is as harms to these common interests.

I now wish to go a step further in taking up Altman's challenge, largely underdeveloped in my book, and say more nonmetaphorically about what harm to humanity might mean. The step to take is to try to show that because of the shared interests in peace and basic human rights protection, on the part of all humans in all political communities, there is enough solidarity among humans to speak nonmetaphorically about the human or international community. Solidarity is primarily a sense of fellow feeling that comes from a recognition that the interests of others overlap sufficiently with one's own interests to make of the interests of others one's own interests. (2)

It is unclear to me whether Altman wants to deny that humans share enough common interests to have the kind of solidarity that is often thought to be an important indicator of a community among them. Does Altman want to say that when we speak of being human we are only speaking of certain shared biological characteristics? It seems to me that there is more to it than this, and that part of the evidence has to do with our empathetic reactions to seeing a fellow human suffer. The solidarity that we feel with fellow humans is based on common vulnerability to violence and harm; the shared interests are based on just these characteristic features of being human. In this sense, there is a community of humans--a humanity with which individual humans identify. And I believe that most Lockeians would, or should, agree with this characterization of humanity.

Even though the community that is humanity is not a political community, it is a community that can be harmed, especially by certain kinds of group-based harm to its members. Humanity is not a fiction if we mean by it a nonpolitical community composed of all humans who feel solidarity with each other because of shared interests in peace and protection of human rights that arise from the shared vulnerabilities that all humans experience. Humanity can be harmed when its members are harmed in certain ways; that is, when the members are not treated as fellow humans but as merely members of other less inclusive communities.

International crimes, then, are violations of the rules of humanity (one possible translation of jus gentium); that is, they are violations of the human condition. Crimes against humanity harm humanity by treating a subset of humanity as if they were not humans, as not deserving of peace and the protection of basic human rights. War crimes, as I have recently argued, are crimes against humaneness, against what is often called the principle of humanity; they are crimes that fail to treat humans with the mercy and compassion deserved by all humans. (3) Crimes against peace are crimes of aggression where one state or statelike entity attempts to destroy another state or statelike entity, thereby undermining the chief human institution that promotes peace and protects human rights. All forms of international crime, I contend, can be assimilated to this model and understood as some kind of harm to humanity, although each category of international crime harms humanity differently.

Unlike Altman, David Luban agrees with me that international crimes are best seen as involving some kind of harm to humanity. (4) He comments that his disagreements with me are mild compared to his agreements. Yet, it turns out that several of the points he makes are quite significant. I will begin my response by briefly addressing the pragmatic issue he raises about how broadly to construe international criminal law. I argue that it is unlikely that states as they are will be willing to give up more of their sovereignty than what can be justified by what I characterize as a minimalist approach. Of course, at the moment the United States is not even willing to do that. So since Luban and I disagree about how broad the scope of international criminal law should be, if we are to consider pragmatic arguments, we are well advised to concern ourselves with what Rawls calls nonideal theory. In the real, nonideal world, the fight is to try to show that any kind of international criminal tribunal should exist. My book is written in that vein.

Another area of disagreement has to do with the point of international criminal law. Throughout my book, I assume that the point is much the same as that of any other form of criminal law--namely, deterrence and retribution. I actually agree with Luban, however, that norm projection is also a goal of international criminal law, although I disagree that this is primarily accomplished through the dramaturgy of the trial process. Rather, there are book-length treatises being written as the judgments from these courts--indeed, the first few judgments were considerably longer than the book of mine we are here discussing. The problem is that individuals are being put in prison as a result of these international trials. These trials are not and should not be thought of as "show trials," where the international community merely makes an example of certain people.

Another issue is easily addressed. Luban is simply wrong to think that I would find forcing Jews into ghettos, or stamping out Christian worship, or stoning women for adultery not to be international crimes. I would ask: what are these practices aimed at? Surely, stamping out Christian worship is aimed at stamping out Christianity, or at least cleansing an area of Christians, just as putting Jews in ghettos is aimed at removing Jews from the larger population, probably with a further aim of then exterminating them. It is unclear to me what would be the point of these practices if they were not aimed at some kind of clear-cut group-based harm. Thus, Luban's examples fall into the category of persecution as a crime against humanity on my account--specifically, they involve the kind of state sponsored group-based threats to the security of its citizens that my theory is meant to capture. So, some of the rhetorical flourish of David's remarks, while itself good dramaturgy, does not quite hit the mark. In my view, the contingent presumption in favor of sovereignty is rebuttable in such cases.

Luban also criticizes me for putting too much weight on the rights and interests of the defendants in international criminal law. He worries that my "conservative" approach, based on defending the rights of the accused, will mean that some big fish as well as small fish will not be punished. This is indeed true, as is true of any similar approach to other types of criminal law. We must be willing to let some people go free who deserve to be punished rather than run roughshod over the defendants' rights. So, while I agree that no one has an entitlement to get away with murder, I am concerned about the plight of those captured and held in captivity accused of crimes. There must have been a clear crime for which they are now being accused, lest we slip into retroactive prosecution. Of course, this does not mean that the defendants had actually to know, but only that they could and should have known, about the existence of the international crime they are now being prosecuted for.

Ignorance of the law is not an excuse, but it seems especially odd to write, as Luban does, that if an act is morally bad enough, then we can be less stringent in making sure that there actually was an international crime violated. Part of my defense of the rights of the accused involves giving them fair notice that they face punishment if they act in certain ways. There are no plain violations of international criminal law, only violations that have been proven in a court of law. Finally, it is not clear to me that Luban is right to argue that Nuremberg put defendants on notice about what international crimes they could be prosecuted for. There were no prosecutions at the international level for fifty years after Nuremberg, despite the fact that some acts committed over that period were just as awful as those that were committed in Bosnia and Rwanda. I fail to see how that fifty-year gap in prosecutions can be reconciled with Luban's claim that Nuremberg put defendants on notice. (5)

My simple idea is that some people who do awful things to one another cannot be prosecuted internationally unless there was a publicly articulated international crime violated; and they cannot be convicted unless the prosecution can show that the accused met all of the elements of that crime; and they cannot be punished unless there were, before the act in question, clearly delineated punishments attached to the various crimes and an impartial adjudicator has considered both mitigating and aggravating circumstances in deciding which punishment to give. As I explain at the beginning of my book, and in many places throughout, if there are going to be international criminal trials at all we must move beyond honoring the victims to embracing norms that support the international rule of law. International moral outrage is not enough for international prosecutions to be justified.

Moral norms can and should influence the development of legal norms, and what is made criminal. The criminal trial, however, should not be merely about violations of the moral norms at stake. And this is not just about protection of state sovereignty, but also about protecting the rights of the defendant. The international rule of law is not merely about scrupulously fair trials and standard punishments, but it is also about making crystal clear that no one is prosecuted in the first place unless there is a violation of well-publicized and defined legal norms. Of course, one can wonder, as I myself do in the last few chapters of the book, about whether criminal trials are indeed the best way to deal with mass atrocities. There are other models besides trials or vigilante assassinations.

Several of my critics, including Jamie Mayerfeld, claim that I am focused too much on groups and not enough on harms when I argue for a group-based approach to international criminal law. In particular, why does my model not cover harming political enemies, as Pinochet apparently did, or harming of the sort that apartheid involved? (6) Why not look to see where there is serious harm and allow international prosecutions of those harms, regardless of whether the harm or the perpetrators are connected to certain groups?

In my book, I urge that we move cautiously beyond what is currently accepted in international criminal law concerning which groups are properly the subject of group-based harm. Indeed, in chapter six I consider and tentatively accept the idea that mass rapes and other harms committed against women could count as group-based harms on my model, even though their status is unclear in international law, and throughout the book I also use apartheid as an example of harms that I consider covered by my model. I part company with these critics only on whether harms that are merely widespread over a geographical area should count as crimes against humanity that are prosecuted internationally.

My major worry is that if we expand the domain of crimes against humanity we will not be able easily to distinguish international from domestic crimes. If we merely focus on the harms and not also on the groups affected, I worry that we will open the door to vigilante justice if there is no clear demarcation of international crimes. The rule of law is what is at stake when justice is unclear and when people do not understand why they are being tried. The concept of widespreadness, currently used to differentiate international from domestic crimes, is not terribly useful in international law unless there is some clear way to determine when it has been met other than merely looking to see if there has been a lot of criminal activity.

Why should individualized crimes, especially those committed by minor players, be so difficult to prosecute internationally? The first thing to note is that the International Criminal Court will probably not be prosecuting minor players. This is at least in part because of intense criticism leveled at the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR, respectively) for spending so many early years focusing on just such minor players instead of the big fish. Conceptually, the idea is that it is hard to see the acts of torture or rape as constituting an assault on a population; that is, it is hard to see these minor players as being held responsible for such things as genocide or crimes against humanity when they only played such a role in the mass crime. Those who planned the mass crime seem more reasonably to be held responsible for such crimes.

In addition, there are so many minor players, on both sides of ethnic wars, for instance, who could be prosecuted, that we risk the label of "victor's justice" when, for instance, only Serbs are singled out for prosecution and not also members of other ethnic groups. If we stick to the leaders, prosecutors will not have as much discretion in deciding whom to prosecute. Indeed, one of the main things that the U.S. government has worried about in international criminal law (although not in U.S. domestic law) is the abuse of prosecutorial conduct in how decisions are reached about who, from a very long list of possible defendants, is in fact put in the dock. Prosecutors will still have discretion about whom to prosecute when they are forced to concentrate on the leaders rather than the small fry, but that discretion will be less likely to be abused.

Mayerfeld's comments address some of the same issues that the other critics have brought out. But there is a sense in which he believes that his criticisms are more devastating than the other critics', especially on the charge that I embrace impunity. Mayerfeld argues that my proposal will "cut a large swath through war crimes law," but Luban contends that my view is too conservative, such as in the current way that international criminal law is understood. Surely, these two critics cannot both be right. Nonetheless, for their different--and even conflicting--reasons, both say that my proposal will allow for too much impunity. It might be appropriate to ask what exactly is my critics' preferred alternative. Altman and Luban have sometimes been tempted to embrace international vigilante justice, where any state can prosecute any human rights abuser. I am not quite sure what alternative Mayerfeld proposes.

Mayerfeld laments that I have too narrow a view of who counts as a member of a state, and he singles out Dusko Tadic in this respect. Tadic was the first person prosecuted by the ICTY, largely because of truly grotesque things he did to Muslim inmates in the camps. Even though he was a very small fry, I argued in my book that Tadic was correctly prosecuted by the ICTY because he had discriminatory intent; that is, he truly wanted to advance the goals of the ethnic cleansing campaign of persecuting Muslims. Mayerfeld writes that I would have had to let him off the hook if he had done the same terrible things, but not only to Muslims, and that instead I should have seen Tadic as a member of the state. I fail to see how one could do that. Tadic was a part-time saloonkeeper and karate instructor who stole into the Bosnian concentration camps at night to exact revenge against those who he imagined had insulted him over the years. He was not in the employ of the state or even an agent of the state. Does Mayerfeld think that we should treat Tadic as a member of the state just so that he is not granted impunity? Under what theory would we be entitled to do that?

Mayerfeld also writes that I am "reckless" to offer criticisms of international customary law. Since none of the other critics comment on this chapter, let me say a few words in response here. My view is that custom is an infirm ground for criminal liability in general, and for international criminal liability in particular. In the United States, this is well recognized in that most criminal law is statute-based today. And in international law, there has been a significant effort at codification in recent years, culminating in the Rome Statute of the International Criminal Court. So, Mayerfeld must recognize that I am not the only one who is reckless in moving us away from customary law as a basis of criminal liability. Unlike many others, I do not wholly disregard the importance of custom, but see it as strong evidence for, but not definitive of, the existence of jus cogens norms. Custom is often too vague and changeable to meet stringent rule of law conditions that are necessary for the system of international criminal law to be fair to defendants.

I wrote at the end that my book will succeed if international lawyers and political philosophers take more seriously than they have the conceptual tasks and challenges I discuss. This symposium has made me feel that the book has succeeded at least in this sense, even if I have not convinced my critics that I was right and they were wrong. I am heartened by Elizabeth Kiss's remark at the American Philosophical Association session that both sides of the debate about international criminal law--those who want a more expansive domain of prosecutions and those who want no prosecutions at all--have been made to feel uncomfortable by my book's arguments. I suppose that making people feel uncomfortable who previously were quite comfortable about their views is in keeping with the tradition of Socrates, the gadfly who sat on the rump of the city of Athens, biting it when it became too complacent. If my book merely accomplishes the task of making people feel uncomfortable with their views about international criminal prosecutions, I can live with that.

(1) For Altman's good defense against my alternative, see Andrew Altman and Christopher Heath Wellman, "A Defense of International Criminal Law," Ethics 115, no. 1 (2004), pp. 35-67.

(2) See the discussion of solidarity in my book, The Socially Responsive Self: Social Theory and Professional Ethics (Chicago: University of Chicago Press, 1996).

(3) Larry May, War Crimes and Just Wars (New York: Cambridge University Press, forthcoming).

(4) See his extremely important paper, "A Theory of Crimes Against Humanity," Yale Journal of International Law 29, no. 1 (2004), pp. 85-140.

(5) I take up this issue in much greater detail in my new book manuscript, Aggression and Crimes Against Peace, where I spend a section trying to sort out what exactly is the precedent of Nuremberg.

(6) Elizabeth Kiss voiced this objection concerning such alternatives as the South African Truth and Reconciliation Commission. Also see her excellent essay, "Moral Ambition Within and Beyond Political Constraints: Reflections on Restorative Justice," in Robert I. Rotberg and Dennis Thompson, eds., Truth v. Justice: The Morality of Truth Commissions (Princeton: Princeton University Press, 2000), pp. 68-98.

Larry May *

* I would like to thank Tom Christiano for organizing the author-meets-critics session at the 2006 American Philosophical Association (APA) Pacific meeting, from which much of this symposium is drawn. I also thank Andy Altman, who recognized the roots of my work in that of my teacher, Hannah Arendt, to whom I probably should have given more credit for framing some of the questions I tried to answer in my book. I wish to thank Elizabeth Kiss as well, who participated in the APA session but who was not able to contribute to this printed version. I refer to some of her criticisms later in this reply.