6.4 International retributive justice
A further difference between communitarians and cosmopolitans arises over the question of retributive justice. Communitarians think that it is the responsibility of each state to uphold justice. Collectively, states can pursue international justice through the auspices of the UN, and are answerable to each other, to public opinion and to NGOs. However, there is no basis for claims to universal jurisdiction, and to deal with matters not found in specific states (such as piracy), or that cross borders (for example, global ecological damage), states should sign conventions with each other.
By contrast, some cosmopolitans hold a more radical model of international retributive justice in which a supranational international court plays a key role. A model of universal, rather than national, jurisdiction is envisaged in areas of retribution. This notion of international retributive justice is concerned with international bodies that have jurisdiction everywhere in the world and are able to bring to trial and punish those accused of crimes such as genocide and ethnic cleansing. An international court along these lines could supersede the authority and jurisdiction of courts within a state. Formerly, high courts in national arenas were the only places where extraterritorial claims, involving the prosecution of nationals in other countries, and disputed claims to rights in the international sphere could be assessed and adjudicated.
For cosmopolitans, the idea of universal retributive justice follows logically from the notion of the universal human rights-carrying citizen. Partly as a result of cosmopolitan ideas, the period since the Second World War, and particularly from the 1990s, has seen significant moves to develop international law, international policy making and practice in order to put some muscle into delivering international retributive justice. The aim of these developments is to enforce claims to rights and to progress efforts to codify limitations on state immunity. International justice in this sense has developed as one of the extensions of the meaning of rights.
Thus the 1990s saw the UN Security Council establishing ad hoc tribunals for war crimes in the former Yugoslavia and Rwanda, and UN and North Atlantic Treaty Organization (NATO) actions in Somalia, Bosnia, Kosovo and East Timor. These developments are proof of new extensions to international law and enhanced powers of intervention granted to international institutions and states in the name of human rights. New legal safeguards to protect minorities from oppression and persecution, in both international and national courts, are also becoming institutionalised. In the early 1990s, the Hague and Arusha tribunals for war crimes were welcomed by many cosmopolitans as building on the legacy of the post-war Nuremberg trials. Subsequently, in 1998, the Rwandan tribunal sentenced the former prime minister and head of the Rwandan government, Jean Kambanda, to life imprisonment for crimes against humanity.
The following year, this precedent was employed to create a milestone in international justice when the UK House of Lords directly raised the issue of who has jurisdiction. Breaking with the previous norms of national jurisdiction (supplemented by international treaties of extradition), the House of Lords ruled that the Chilean General Augusto Pinochet did not have sovereign immunity and could be extradited from the UK to Spain, to be tried for crimes against humanity allegedly committed in Chile while he was head of state. A few months later, Chandler notes, ‘the indictment of a sitting head of state, Slobodan Milosevic, for crimes against humanity was greeted as confirming that there had been “a revolution in international law”’ (Chandler, 2002, p. 7).
Of more import is the establishment of the International Criminal Court (ICC). In 1998, important steps were taken towards setting up a permanent ICC with jurisdiction over individuals accused of serious war crimes, crimes against humanity, and genocide. Compared with the UN settlement, the ICC is a radical institution with overarching global competence, expressing the cosmopolitan commitment to the principle of reason in an ‘international public sphere’. One aspect of this radicalism is that the only body with the authority to over-ride an ICC decision is the UN Security Council, by a unanimous vote.
Can you think of some problems with the communitarian and cosmopolitan positions outlined above?
Cosmopolitans, in the name of universal human rights, pursue both distributive and retributive justice at an international level in ways that compromise the independent sovereign rights of states to national self-determination. Nevertheless, sovereignty remains a key principle of international order. How to recognise both human rights and state sovereignty, given that states can be both protectors of, and threats to, individual rights, is a key question for cosmopolitans. Its critics argue that too often cosmopolitan justifications for superseding sovereignty represent the interests of the wealthy and the powerful. The communitarian approach stresses the social shaping of rights claims, the needs of communities and the role of states in upholding a political order that can define and protect these claims and needs. Where do other actors, most especially the individuals that comprise any given community, fit into this picture? How do their rights relate to the rights of the state? These are pressing issues for communitarian positions.