Ethics forms a necessary philosophical framework for the structures of international law, dictating the norms that serve as the standards of justice against which actions in the international community are judged.  While numerous types and variations populate the realm of theoretical inquiry, the most relevant for matters of criminal justice is the concept of natural rights, the postulate that each human being inherently deserves to receive a particular set of guarantees.  Each right relates to a norm, a generalized principle in the language of criminal justice, which in turn corresponds to one or more laws usually phrased in terms of a crime and a punishment.  For example, given the right to living, the corresponding norm would be that an individual‚s life would not be violated, and the related set of laws would govern crimes such as murder or, on an international scale, genocide.

A natural rights-based ethical system creates superior products of international law, specifically in the field of criminal justice, since it largely assigns morality before taking power politics into account.  Moreover, it fosters the spirit of cosmopolitanism, which encourages individuals to envision a global community of shared responsibilities.  While the process of creating a rights-based system of international justice requires a certain suspension of criticism, as will be shown, it is better than the alternative, for systems based on natural rights facilitate this far better than those focused on laws and sovereignty.  Although the ex post facto construction smacks of positivism and circular logic, its political validity can be demonstrated by superior end products.

The International Criminal Court, the end product of years of careful planning, was meant to bring the world’s nations towards this goal.  However, because it began with different principles, particular interests were allowed to intervene and the final phase of its establishment was reduced to a game of power politics.  As demonstrated by its limited mandate and awkward definitions of crimes, the court as currently conceived cannot properly act as an instrument of international justice: it neither punishes nor deters transgression and by itself will never successfully promote the lofty ideals preached at its inception.  Because the ICC focuses on tracing the crimes of a state to an individual or small group of perpetrators, it is unable to deal with entrenched systems of injustice whose necessary removal would plunge a sovereign nation into great chaos.

Natural rights posits the priority of an inherent set of rights over all other characteristics of an individual’s encounter with the world his or her sense of identity, relationship to other people, and place within the hierarchies of social and political power.  Rights were an inherent a priori part of human nature they could not be made tangible or compromised on.  Hugo Grotius formulated the foundational definition of natural rights in the international realm: “Instead of being something that an action or state of affairs or a category of these is when it is accordance with law,” the prior conception found in Roman civil law and Thomistic philosophy, natural rights are “seen…as something a person has.  The concept becomes ‘subjectivized’, centered on the person: it is a power the person has, as such it is also called the moral quality of the person” (Haakonssen 240). Its ambitious universalist scope serves to impose a narrow focus on the norms it upholds, filtering out corollary concepts from the realms of political and economic justice, such as the right to work or to move freely, that would ultimately undermine the project’s philosophical foundations.

The challenge of rights-based criminal justice is that it tends to assume that individuals are inherently good and that crime is a deviation from standard behavior.  Although such postulates frequently feed into utopian visions of a world free from evil, it can be tempered with the notion, advanced by Pufendorf, that although every person inherently knows right and wrong, they nevertheless exhibit free will and have the power to choose evil[1]. However, because the question of humanity’s inherent nature takes primacy over individual decisions, it cannot be ignored. Since neither the conjecture of humanity’s inherent goodness nor its antithesis can be conclusively proven or disproven, the only possible resolution to the two dichotomous extremes is a neutral middle ground in which rights, regardless of their morality or immorality, are upheld at all costs.  Preceding any structures of society, rights provide a sense of a human identity that will factor in later when the ramifications of particular crimes are being considered.  They constitute, in the terminology of Nicholas Onuf, the “everyday ethics” (82) that creates the basis for moral interactions between human beings. 

The factor critical to moving from this “moral version of Cartesian doubt”[2] to a basis for a moral and functional society is the clear delineation of specific rights.  The first and most important step is to take a step back from what current actors vociferously demand and consider the most fundamental requirements for human survival in a modern society.  As Rosalyn Higgins remarks before and after a list of basic rights, “Individuals everywhere want the same essential things…I believe that there is nothing in [the] aspirations that is dependent on culture”[3].  Basic human rights, those which deal with outright prohibitions rather than permissions, extend no further than protections against murder, torture, coercion and intentional disenfranchisement.  Human rights cannot by themselves ensure material welfare or political progress such as democratization (though these are often consequences of greater recognition of human rights), nor can they truly compel any individual to abandon his or her worldview.  Pufendorf bases his system of natural law on an image of righteous individuals inhabiting the state of nature before creating a “pre-political society”[4] a developmental stage free from laws but bound by the necessities of interpersonal contact and loyalty.  For him, the act of joining or creating a society addressed the human characteristic of “sociability”[5] without changing the fundamental system of morality.  This theoretical construct, though perhaps pure fantasy, allows for a logical understanding of the manner in which human rights may enter a society without being compromised or coerced away.

From the perspective of a human community, the goal of advancing a rights-based argument would be to create an atmosphere of what Pogge calls “moral cosmopolitanism”[6].  Such an enterprise seeks to establish a base minimum for human existence beneath which societies do not permit their members to fall.  However, since morality precedes the institution, the construction of a proper system begins with an “interactional”[7] rather than “institutional” approach, picking up where Pufendorf left off and examining the moral precepts that guide interpersonal interaction: “negative duty gives rise to positive obligations”[8].  Rights fit well into the notion of the social contract: in exchange for providing the state the economic and political means to survive, citizens no longer have to worry about protecting their own human rights; the government provides protections for them.  Moreover, they correspond to a “law of nature”, distinct from a “law of nations”[9], the latter of which is subject to political influences.

Beyond ontology, norms also influence human behavior by inspiring laws that constrain people’s choices in the interest of the common good.  Kant distinguishes between morality and legality: one is conditioned by the philosophical aspects of human nature, the other, by the particularities of the political situation.  “Morals and politics are, by nature, ontologically alienated”[10].  The crux of the problem lies in the difficult but necessary bridging of this gap.  Progress begins by using the precepts that natural rights create as the basic rules for social interaction, building a just society from the ground up.  While an individual’s social existence is shaped by far more than what is required and what forbidden, the concept of permitted but optional rights (for example, freedom of religion in the United States) allows for conditioning by local forces, such as culturally specific elements, that can shape an individual’s worldview without compromising his or her basic rights.  Although the mandatory rights (which cannot be negotiated or conditioned) are framed in terms of protections against crimes, according to Pogge, “negative duty gives rise to positive obligations”[11].  A limit to the degree an individual can remain free of social connections exists, beyond it lies the state of nature in which even mandatory rights cannot be adequately defended and, in terms of an individual’s moral calculus, are meaningless.  Philosophers believed that natural rights were self-apparent to all rational individuals.  Since societies depend on such people for their vitality, (those who are irrational [in the classical sense] cannot truly participate in human society) they would naturally want to (and be able to) design the vital institutions of their society to protect basic rights.  However, they would also want to go beyond negative freedoms and use permitted rights to elaborate a more complete notion of citizenship and civic virtue.  Yet following this path towards a more liberal notion of rights invites great danger, the father along the path, the more valid the criticism that the system is envisioning an impossible utopia becomes.  Nevertheless, considering the continuous evolution of law, in the international realm norms can be taken up by people Nadelmann calls “transnational moral entrepreneurs” (482) who seek to alert nations to an existing law’s unfairness.

The necessary consequences of a rights-based system are the crimes against it and the means by which it prevents and punishes criminality.  Only absolutist constructions, such as Pogge’s rules of moral universalism[12], can provide a solid foundation, for the social good that criminal justice cannot be thought of as a balance or interests[13].  Although Pogge leads himself into a quagmire by focusing on economic justice, the black-and-white moral definitions of criminal justice help overcome Pogge’s primary obstacle - the need for the eventual laws to disregard everything about their subjects (class, background, beliefs, etc.).  Since the very acts which the laws will define as criminal are designed to categorically deny the victim’s humanity, they must be as specific as possible; only in rare cases, such as slavery, can an entire institution be labeled as entirely immoral.  

Another critical issue that the institution must address is the problem of identifying the single actor responsible for the crimes within the deep ranks of national bureaucracies.  Among Jerome Hill’s 7 principles that Husak cites as the foundation of orthodox criminal theory, the most important in the construction of criminal justice institutions is the mens rea – the notion that a person must accept responsibility for breaking the law in order to be declared guilty[14].  Consequently, the criminal must know beforehand that the act they are committing is ipso facto illegal or immoral (in other words, the ends cannot be used to justify the means).  Because rights are both universal and permanent, they cannot be suspended or overlooked to satisfy a separate (even if more noble) goal.  Although this corollary informs the side of the defense in domestic courts (specifically, by providing grounds for the insanity plea), it greatly aids the prosecution internationally.

Complementing the notion of mens rea, Miller’s (borrowed) concept of “outcome responsibility” (244) shines through the murkiness of collective accountability, providing an ironclad criteria for deciding who is the criminal. Previous trials and arguments, while inevitably trapped within the particularities of their situation, can, if properly contextualized, inform the deliberations.  Objectivity, if possible, will come from Pogge’s universalist foundations of cosmopolitanism – that each person should receive fair and equal treatment; both the criminal and the world deserve nothing less.  Ultimately, the final result of the difficult negotiations required to create a functional guideline for an institution of international criminal justice is inevitably limited and flawed, but as piece of law it can be amended but not ignored.

The final step, difficult but not impossible, is the extension of rights based justice to create what Nadelmann calls a “global prohibition regime” (479) in the twenty-first century.  Kant throws down the gauntlet: “the terms of [a just order]…are decided once and for all through the deductive power of abstract thought.  Pure practical reason creates a union of theory and practice.  There are no existential uncertainties: whatever is universally valid as a matter of abstract right is equally valid in matters of action” (Murphy 58).  Though difficult to square with the rapidly (relative to Kant) changing international system, the guideline that the eventual institution must be permanent, setting its own precedents like the U.S. Supreme Court, better ensures its perpetual accountability.  Institutional legitimacy derives from its role in maintaining world order and deterring crimes against humanity.  While such justifications help carve out a minimal niche for the institution, the future possibilities in the expanding domain of international justice include Barry Buzan’s concept of a “world society” (337), defined as a community which views its aggregate needs through the eyes of the totality, or, more likely, the average, of its constituents.  In this society, political concepts long confined to the domestic realm, such as citizenship, could be brought to the global level, fundamentally reworking the concept of a social contract.

Sovereignty both challenges this idealistic vision and provides it with the means of realization in today’s international system.  On one hand, states can use it to quickly reject particular norms; however, if properly motivated, they can champion them to create the impression of a moral government.  The critical step the international law community must take is to convince states that supporting and protecting human rights are in their interest; in democratic states, this can be done through popular mobilization; in other states, international pressure or sanctions would prove more effective.  Wilfred Jenks’s Common Law model, which seeks to create from the existing condition of “complex interdependence” (Buzan 332) a robust corpus of rules, provides a strong possible method, reminding nations that “the repercussions of state policy and action transcend the levels of interests of the states per se and inter se” (Stone 15).  Although Jenks’s system initially seems to be a panacea for the obstacle of sovereignty, problems arise from its willingness to stay within the system.  Given the reticence of international actors to acquiesce to a set of demands, however, thinking outside the box, such as Richard Falk’s project to craft a “world order model revealed by a growing public consciousness” (Stone 12).  His disillusionment with the current system reflects Pogge’s desire to move toward a “global institutional order” (171), creating, in effect, a de jure global morality.

However, such a rapid and powerful centralization, though glorified in the minds of political theorists, represent a dangerous proposition to the current nation-state system, which, for better or worse, at least maintains the status quo and preserves a reasonable degree of international peace and common morality.  M.S. McDougal’s envisioning a more negotiated settlement (Stone 11) provides valuable insight into how this might occur.  If states could be brought to the negotiating table and shown the real benefits of an international criminal justice institution, they could reimagine the concept in the context of the “expressions of community expectations” (21) that McDougal claims fundamentally shape nations’ attitudes and decisions.  According to Cecilia Lynch, the solution lies in fully explicating the benefits and expectations: [A] sophisticated internationalist stance…must call the state to accountability in ensuring social and economic welfare while looking to international norms to place control on statist militarism” (Franceschet 89).  Other, institutional guarantees, such as one against what Sterling Johnson calls “mission creep” (12), must be part of the package.  Ultimately, the determining factor will be the degree to which states feel that their power is being reduced – their narrow, myopic self-interest must be balanced against making the system work which, in the end, will almost always be better for them.

Yet what will seal the deal?  Beyond compelling states to buy into the process, the effective carrying out of prosecution can provide the enforcement institution with popular legitimacy, forcing people away from particularist positions.  The crucial element to achieve this is effective interstate communication: without the awareness of the extent or depth of injustice in the world, it is nearly impossible to generate universalist solidarity and rally around the cause of international criminal justice.  “The justice motive,” Franceschet asserts, “is the drive to correct a perceived discrepancy between entitlements and benefits” (92).

At this point, it must be acknowledged that Grotius’s system has clear limits, although these can be bracketed and overcome independent of his central claim.  First, he clings to a seventeenth-century view that states act for genuine motivations: “the consciousness that one has justice on one’s side greatly contributes to victory” (Bull 224).  While modern states frequently walk the fine line separating honesty and deceit, the actions of states, largely independent of their motivations, matter exclusively to the arbiters of criminal justice.  In other words, states cannot fool themselves, and at some point in the decision-making process politicians would have had to acquire a justification for a planned action that reaches beyond domestic pandering into the domain of morality.  Natural rights are unavoidable, and all states are liable for the foreseeable consequences of the decisions they make.

Second, Grotius defends the universality of natural rights in the face of national sovereignty by arguing that on the basic level, rulers are no different than their subjects and, as such, must not violate the rights that the rulers themselves hold.  While this philosophy may have functioned adequately in the seventeenth-century, it is quite insufficient for modern needs such as political enforcement and considerations of multiple layers and types of authority.  However, given the foremost and most fundamental duty inherent in a political office (to protect the rights of constituents), the claim that the official, to the extent of his power, carries the ultimate responsibility toward his or her people, remains legitimate.  Redefining the administrative bureaucracy in terms of a hierarchy of accountability preserves the spirit of Grotius’s anti-establishment proposition and helps sort out blame in the event that a prosecution for an government’s crime against humanity becomes necessary.

To accept the legitimacy of human rights, the system must be distinguished from the particular context in which it was produced: critics with being an egotistic example of cultural imperialism, designed specifically to impose Western ethics on the majority of the world’s people, who do not necessarily embrace the same system of values.  Although undeniably the principal authors of human rights hailed from Western Europe, two responses can carry the claim to its demise.  First, that the central philosophy supporting every civilization in the world respects the rights of individual at some level.  Concepts such as social hierarchy are basic aspects of any functional power structure.  As Onuma Yasuaki, in his tour through Chinese, Muslim and European constructions of international law, remarks, “There always exists a certain degree of overlapping in a particular human’s belonging to a certain civilization” (10-11).  In other words, although individuals cannot easily travel between nations, the difference is not so radical that two countries have absolutely nothing in common. Although individual protections are often crushed by a powerful authority, their demise is more a consequence of an alignment between a ruler’s desire and his ability to carry it out than a reflection on the society’s underlying values.  Second, even if the concept of human rights is an exclusively Western export, in today’s hegemonic world it is hardly the most binding imposition handed down to the third world.  That it acts as a counterbalance to the centralization of political power means that even if the concept is not indigenous to a particular culture, it is in the people’s interest to support it, since it stands to bestow upon them a degree of wellbeing that could not be so easily and legitimately obtained.  In other words, if the West has set the rules of the international power game through globalization, then advancing human rights protections represents the developing world’s most effective strategy.

The creation of the International Criminal Court ran contrary to this natural-rights construction of international justice.  Rather than beginning with a consensus over the primacy of natural rights and basic definitions, the crafters simultaneously tackled the creation of the institution and the deduction of the salient features of the subject matter. It focused on four areas of international law – crimes against peace, against humanity, genocide and war crimes – which can be justified with a philosophical line of reasoning originating with natural rights.  Anything that threatens populations, from war to political oppression, by definition affects individuals.  The scale of these crimes, most of which involve, at some point, the destruction of one or more entire civilian communities, fulfill even the most conservative catalog of natural rights.  The mens rea takes hold at the point of no return in the decision-making process, beyond which all actions except complete renunciation result in criminal acts. However, this moment occurs early enough that the perpetrators cannot but have considered the natural rights of the residents of the area they had targeted for destruction.  Natural rights can and must play a significant role in the formation of an international criminal justice institution; without them, the system suffers from a weak foundation, based more on precedent and existing legislation than highly regarded philosophical foundations.

The most important single cause for the significant failures of the process is its overpoliticization – primarily the intense involvement by states, who arrived with their own self-interested agenda, rather than with a particular philosophical construction that could be fruitfully debated.  Rather than take to heart “the Rawlsian claim that the right has priority over the good [which] is understandable if we understand institutions as embodiments of the right, and individuals as expressions of the good”[15], the Rome Statute’s authors drew on the legacy of prosecutions of war criminals to derive a system based on the general good of international peace and an orderly arrangement of sovereign states.  Because it attempted to follow precedent, one which was already mixed, rather than blaze its own path, the Rome Conference could not move beyond a power struggle, greatly weakening the ultimate outcome and setting a poor example for future institutions of justice. 

The Rome Conference, where the structure of the ICC was finalized, took place with the intent of applying existing customs and laws to the realm of criminal justice.  Broomhall envisions this framework consisting of “increasingly narrow concentric rings of doctrine”[16], where the majority of crimes are committed by state, rather than individual, actors.

Where rights-based language could have been emphasized, it more often than not fell victim to far weaker negotiated positions.  As Hedley Bull remarks, “the idea of law-making by multilateral conference, if not inherently hostile to [Grotius’s] outlook, has no place in his writings” (76).  Yet this is exactly how the ICC was imagined: “The ILC’s[17] 1994 Draft had taken the position that its function was neither to define nor to codify crimes under international law; rather it viewed the Court’s Statuete ‘primarily as an adjectival and procedural instrument’” (Sewall & Kaysen 40).  By beginning, rather than ending, with notions of state sovereignty and ignoring the basic notions of cosmopolitanism and natural law, it created an institution that was felt by every nation to be an imposition by the others, leading to a tragic loss of its own legitimacy and, consequently, much hope for the future of international criminal justice.

Postconflict tribunals played the greatest role in the early conceptualization of the ICC; crafters saw it as a way to create a universally applicable system ready at all times to respond to incidents of injustice.  However, neither linearity nor logic can be used to describe their history; rather, the desire of powerful nations to set an example led to their creation.  Consequentially, numerous atrocities were tragically overlooked, particularly during the Cold War, and when tribunals did occur, they were prone to delays and errors that, had they not been propped up by Western political and financial support, would have caused them to collapse. 

Almost at its inception, the Rome Conference became fraught with political fractures.  “The problem, William Schabas remarks, “was that many states belonged to the majority on one question but dissented on others”[18].  The looming threat of widespread dissent forced countries to band together, creating often-unnatural alliances.  The most powerful emergent group was the “like-minded states”[19], a diverse mixture of states, lead by Canada and supported by a large set of NGO’s which, for the first time, were allowed to take a relatively active part in the process, delivering sometimes harsh criticism, gathering news, making recommendations, etc.  The “non-aligned movement”[20] represented a separate set of agenda items, most prominently their central goal of including aggression on the list of crimes.  The United States became trapped between philosophy and political interest, the former ultimately prevailing in the form of support for popular sovereignty, which is largely antagonistic to the US’s role in the global hegemony[21].  Although choice positions in the various subcommittees were distributed relatively equitably, the hegemonic presence felt quite strong.  Paranoia drove the larger states to insist on protectionist measures such as requiring the U.N. Security Council to recommend cases and instituting the principle of complementarity while leaving open the question of how to objectively determine national courts’ legitimacy. 

Of the four primary crimes prosecuted by the ICC, aggression, the most egregious act of interference possible, best exemplifies the Rome Convention’s and politicization.  The guidelines for prosecution of the crime of aggression developed largely after World War II as a way to justify UN Security Council intervention[22].  Although long connected with war crimes, it was most often used by the victorious party as a “prosecutorial magic bullet capable of ensuring the conviction of those at the very top”[23]. However, war crimes tribunals frequently struggled with defining aggression as a crime, since states, rather than individuals, were injured.  Though undoubtedly an act designed to subvert order and one perhaps deserving to be branded “criminal”, it does not fit within the rights-based construction of international law.  In fact, it partially operates against it by emphasizing the permanent sovereignty of states as equally worthy of defense as human lives.  That it was included at all in the Rome Statue (and the degree to which it dominated discussions) indicated that the entire process lacked the philosophical rigor required to produce coherent and compelling international justice institutions.  Although the argument could be made that aggression jeopardizes human lives, justifications, in the rare cases when they were delivered, focused on aggression as a “crime against peace”[24], a transgression of a societal good, rather than on violations of human rights.

However, the Rome Conference’s politicization reached its zenith in the debate over the “trigger mechanism”[25]. Should the UN Security Council or the ICC determine when aggression may have taken place?  The problem “touches upon the institutional balance between the judiciary functions of the Court and the political prerogatives of the Council”[26].  Negotiations settled upon the independence of the Court, freeing its investigative abilities from the leash of an organization that had only once identified a case of aggression (the Korean War)[27].  However, this procedural decision affected decisions over the definition of the crime, rather than the vice versa:

The Statute-based condition of preparing a provision defining the crime of aggression does not depend on drafting a definition of aggression in the literal meaning of the term.  Rather, it requires a formulation in which the role or involvement of the individual in the commission of ‘aggression’ (which is already defined) could be identified for the purposes of attributing a criminal act to an individual. (ibid)

Without beginning with a rational philosophical foundation, such as a rights-based system, crimes cannot be legitimately elucidated; the definitions will always be open to accusations of interference from competing interests.

The Rome Conference succinctly illustrated how the negotiation’s reliance on democratic consensus to deliver plausible and well-supported measures interfered with constructive discussions on the nature of justice in the modern world.  Had it began with a return to fundamental principles, it might have been able to rediscover elements of classical jurisprudence buried during the realist-dominated Cold War era.

Because of its faulty construction, the ICC will not be able to meet the international community’s juridical needs.  It has no mechanism for creating cessation, “the first purpose of the judicial action against human rights” (Shelton 96), or for guaranteeing fair but sufficient reparations for victims, a necessary factor in the institution’s accountability (98).