International Crimes and the Right to Punish

• Published date: 01 September 2019
• Date: 01 September 2019
• DOI: http://doi.org/10.1111/raju.12253

© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

Ratio Juris. Vol. 32 No. 3 September 2019 (301–319)

International Crimes

and the Right to Punish

LUISE K. MÜLLER*

Abstract. What can inter national courts s ay when criminal s ask, by what right do you try

me? Some authors attempt to draw a connect ion between human ity’s responsibility to cal l

offenders to account and the h arm humanity has suffer ed as a consequence of the offender’s

crimes. Other s have argued that there nee d not be a special connec tion between thos e call-

ing to account and the offenders, as the right to pu nish offenders is a general right each a nd

every person has. Bot h lines of argument a re ultimately unconvi ncing. Instead, I argue for

a modified version of the s econd position, which proposes a democratically ba sed theory of

responsibilit y for punishment held by internatio nal criminal law in stitutions.

1. Introduction

What can internationa l courts respond when crimina ls ask, by what right do you try

me? One of the main points of contention in t he philosophical debate about interna-

tional crim inal law is the question what gives other states or internation al courts the

right to call offenders to account. The quest ion I discuss in this paper is what ki nd of

relation constitutes a court ’s right to punish offenders. Wh ile some argue that a spe-

cial connection needs to exist for crimi nals to be even answerable for their crime

before a specific court, others argue that the right to puni sh criminal s is a general

right each and every court—be it domestic or i nternational—has in the first place. I

am thus asking about the auth ority of legal-political agents who pun ish.1 The ques-

tion of authority and punish ment has become more acute recently, as international

and transnationa l institutions gai n more power and influence, forcing scholars to

widen the focus of their research on legitimate authority to include nonstate

1 In this sen se, the scope of this paper is nar row, as I ignore other aspects of punish ment, such

as the justif ication of punishment and under what ci rcumstances a person i s liable to punish-

ment. See Hill 1999 for a number of helpf ul distinctions. I tha nk an anonymous reviewer for

pressing me to clar ify this.

This is an ope n access arti cle under the ter ms of the Creative Com mons Attrib ution License, wh ich permits us e, distribut ion

and reproductio n in any medium, provide d the original work i s properly cited.

* I would like to than k the participants in the workshop Answ ering for International Crimes for

discussin g a first draft of the paper with me in July 2017. In particular, I am gratef ul to Alain

Zysset for inviting me to Oslo, and for h is many helpful questions over the last years. I al so

thank the a nonymous reviewers for this journ al for their excellent comments.

Luise K. Müller

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Ratio Juris, Vol. 32, No. 3© 2019 The Author. Ratio Juris © 2019 John Wi ley & Sons Ltd.

institutions.2 In this paper, I identify and discuss two main positions i n the litera-

ture. Not only will th is help us understand institutions’ authority to pun ish in gen-

eral, but we will be able to see more clearly the justif ication for any nonstate

institution’s right to punish. The fir st position argues that what gives persons or in-

stitutions the right to pun ish is a special relation constituted by harm. Cal l this the

“special right hypothesis”: It derives the right to punish from the idea that thos e who

suffered harm by the c riminal are conferred a spe cial right. The second position ar-

gues that no prior relation is necessa ry to allocate the authority to punish. Call th is

the “general right hypothesis”: It derives the right to punish from the idea that each

person is permitted to pu nish offenders.

Both positions can be traced back to John Locke’s discussion of punishment.

Locke is ambiguous on whether t he right to punish is a general or a special right,

and Locke scholars di sagree about what type of right best characterises Locke’s

“natural executive right.”3 Locke clai ms that persons are free in the state of nature,

but they are not free to do whatever they please; the law of nature prohibits person s

from committi ng suicide or killing others.4 Indeed, they must “preserve” them selves

and others, unless they h ave “to do justice to an offender” (Locke 1963, bk. 2, § 7).

Punishment is just ified by the duty to defend one’s fellow humans against offenders

that are dangerous to human ity. When a person transg resses the law of nature, she

declares herself as l iving by rules other than the law of nature (which is the law of

reason and equality) and thereby she becomes dangerous to others. Because every

person has a duty to preserve human ity, transgressions of the law must be pre-

vented, or at least minimised. Lo cke thinks that this can be done by punishing the

offender, thereby deterring furt her danger to humanity (ibid., § 8). The nature of

Locke’s argument is consequential ist, alluding to the defence of others for the justi-

fication of punishment: It is just ified not in reference to self-preservation, but in ref-

erence to the preservation of all humanity (ibid., § 11). Simmons (1991, 330), however,

notes that at other times, Locke se ems to follow a different path to the justification of

punishment. In tho se instances, Locke sounds as i f the right to punish is not a gene ral

right possessed by all, but a special right cr eated by the criminal himsel f, by having

committed the cri me. On this interpretation, the crimina l’s right is “forfeited to or

with respect to a particular par ty—namely, the victim of the cr ime. The victim is the

only person with the right to pu nish, though he may, of course, enlist t he aid of will-

ing assistants” (ibid., 332).

The aim of this paper is not to show whic h interpretation of the natural executive

right is correct. Instead, I show that bot h the special right hypothesis and t he general

2 Wellman (2009, 420) notes that the question of authority a nd punishment—who may do the

punishing— has been relatively neglected be cause “we tend to be unreflect ive statists”; that is,

we simply assume that the norm ative reference for all political authority is t he institution of

the state.

3 A. John Simmons (1992, 87ff.) argues that the natural exe cutive right can be interpret ed either

as a general right or as a spe cial right.

4 Simmons emphasis es that Locke’s main point is that one must preser ve humanity (“mankind

as a whole”) rather than prim arily oneself. This mean s that not each and every person must be

preserved in al l circumstances, but that we are allowed to ha rm (or kill) others i f humanity is

thereby preserved (Sim mons 1992, 48). This reconciles Lock e’s idea of the fundamental law of

nature—the pr eservation of persons—wit h his arguments on pun ishment.