Crimes Beyond Justice?

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Crimes Beyond Justice?

Retributivism and War Crimes
AARON FICHTELBERG
For these crimes, no pimishment is severe enough. It may well be essential to hang Goring, but it is totally
inadequate. That is, this guilt, in contrast to all criminal guilt, oversteps and shatters any and all legal systems. That
is the reason why the Nazis in Nuremberg are so smug.
—Hannah Arendt'
What you end up in post-genocide society is not justice. Perhaps we should use another word for it.
—Gerald Gahima, Deputy Minister of Justice, Rwanda^

In recent history, mass atrocities have occurred only at
the margins of westem experience. Since the end of World
War II at least, the worst international crimes have taken
place in remote spots like Cambodia, Rwanda, and Yugo-
slavia, appearing only as ghostly images on CNN and in
the pages of Life magazine. This fact has had many conse-
quences for our thinking about the relations between
law, justice, and international society. In particular, it
has left faith in international law and international
criminal proceedings largely unchallenged in much of
western consciousness. Increasingly, international
criniinal tribunals are promoted by diplomats and legal
scholars as a means by which victims of horrendous
crimes may achieve justice, and states may develop an
international order based on a respect for human rights.
This movement reached a dramatic new phase with the
codification of the Rome Statute of the International
Criminal Court (ICC) and its entry into force in July 2002
(with 139 signers). However, the development of this
novel institution may bring the power as well as the
limitations of international criminal justice into public
debate again, raising questions that were asked—and
largely dropped—at the end of World War II. One such
observation was that of Hannah Arendt, quoted above.
I take Arendt's comments and her somewhat oblique
criticism to be important for understanding the moral
foundations of modem war-crimes trials. In my view,
she points to a problem that creeps only around the
Aaron Fichtelberg is an Assistant Professor in the Department
of Sociology and Criminal Justice, University of Delaware.
edges of contemporary legal thought, but one which
nonetheless requires serious reflection. In particular, her
assertion about Nuremberg points to a serious problem
for retributivists (like myself), for whom punishment is
considered to be a moral response to the crimes that were
committed. In essence, if there is no possible equivalence
between crime and punishment then, as Arendt asserts,
then there is no moral rationale for such trials. Or at least,
if this is the case, the retributivist view of punishment is
in some deep sense a flawed one.
However, this is not just a critique of a particular
theory of criminal punishment, a theory that could be
easily discarded in favor of another more appropriate
one. Rather, Arendt's critique cuts deeper than "mere
theory." Her insight (shared by Churchill among others)
points to a flaw in the central rationale for the nascent
international criminal law regime. This legal order (com-
prising treaties, customs, and moral principles developed
over the last sixty years since the International Military
Tribimal [IMT] at Nuremberg) has been constructed
around a particular philosophical ideal that depends on
notions of justice, order, and human dignity. It is these
values that are the object of Arendt's critique. Thus, if her
criticism is a valid one, it would prove devastating for
the entire program of intemational criminal justice.
In this essay, I seek to make sense of a retributivist
approach to punishment for war crimes in light of
Arendt's observation. My argument has several steps.
First, I claim that a retributivist theory of punishment is
the orJy approach that can effectively make sense out of
the "human rights revolution," on one hand, and war-
crimes trials, on the other. This is especially true in light

Winter/Spring 2005
 Aaron Fichtelberg / 32
of current intemational criminal law and the newly
constructed ICC. Second, I will tum to Arendt's objection,
one that I take to be particularly threatening for the
retributivist because it attacks this view on its own terms
(that is, it offers an intemal critique of retributivism).
Having set out Arendt's critique, I will then tum to what
I believe to be a properly retributivist response to Arendt's
objections, rooted in Immanuel Kant's claims in his Meta-
physics of Morals regarding "crimes against humanity."
This will require a broader discussion of Kant's views
about morality, freedom, and the nature of human society.
Put simply, by committing crimes against humaruty,
certain criminals have alienated themselves from the civil
society of rational citizens and must be punished by a
permanent expulsion from this society. It seems to me
that if properly understood, Kant's views on punishment
point to a coherent and defensible response to the mass
atrocities that fall under the jurisdiction of the various
war-crimes tribunals.'
Most philosophical approaches to international
criminal justice have focused on the jurisprudential
rationale for punishing criminals in an intemational
I Retributivism and War Crimes
The idea that all criminals should be punished for their
illicit deeds, regardless of their political position, is at the
heart of the modem intemational crirrunal law regime.
This goal is supported in common political discourse by
two pillars, one utilitarian and the other retributivist.
The former argues that the benefits, over either the short
or long run, of punishing people such as Goring or
Saddam Hussein in a legal forum justify such trials.
Such tlunkers point to the usual battery of utilitarian
arguments for punishment: deterring future crimes, estab-
lishing a historical record of the criminal acts, reforrrung
lawbreakers, providing a sense of closure to their victims,
and so forth The other, more abstract view declares that
justice itself demands that these people be punished
independent of any harmful or beneficial consequences
that may arise from their trial. For retributivists, other
benefits of punishment, though desirable in themselves,
are morally insigniflcant. It is the latter view that is the
only valid justification for trying the imique sorts of
crimes that the intemational courts have been designed
to handle.
I am not arguing for the philosophical soundness of
retributivism as such, nor am I defending the philo-
sophical legitimacy of war-crimes trials in general.*
Criminal Justice Ethics
forum, seeking to defend the normative status of
intemational criminal law against assertions that such
trials violate the principle of nullum crimen sine lege. For
example, AndrewAltman, Christopher WeUman, and
Larry May have sought to defend the legitimacy of
intemational crirrunal law by examining the moral right
of international courts to punish certain classes of
criminals.^ Each has offered different argioments to justify
"how intemational criminal prohibitions can legitimately
pierce the sovereignty of a state so as to permit an inter-
national tribunal, or a court of another state, to prosecute
crimes committed wholly within the state's territory."^
However, each assumes that these crimes should be
punished and fail to offer a moral rationale for inter-
national justice as such. Without a coherent philosophical
theory of criminal purushment to justify intemational
criminal justice, the mere authority or "permission" to
apply a set of norms to intemational criminals remains
vacuous. If such trials cannot provide substantive justice
in a philosophically meaningful sense, they are more
deeply flawed than any procedural objection would
reveal.
Rather, I am making a much narrower claim. Specifically,
I am arguing that one cannot make sense out of the
intuitions, values, and beliefs that stand behind the
current movement toward intemational criminal trials
and war-crimes trials (or their shared ideology, if you
wilF) unless one understands it to be rooted in a retribu-
tivist theory of punishment. While the term "ideology" is
a loaded one, it nonetheless captures the point: the
ideology standing behind modem intemational criminal
law and the laws of war displays a noted bias in favor of
the retribufivist principles articulated by Kant (among
others). Although utilitarian/corisequentialist arguments
are sometimes given for such trials by their proponents,
they do not stand up to scrutiny because, as I will shortly
argue, they are false, or at best reflect an undue optimism
on the part of their proponents. Ultimately, war-crimes
trials do not provide the greatest happiness for the greatest
number.
Despite some important philosophical differences
among individual thinkers, retributivists share some
common central beliefs. For these thinkers, the rafionale
for pimishment is "metaphysical" in character in the
sense that it is rooted in abstract principles of justice and
right. Worldly benefits of purushing wrongdoers, such
 Crimes Beyond Justice? /
as deterrence or a communal expression of outrage,
though certainly not imdesirable, are in and of themselves
morally irrelevant. Justice is the independent, non-
material motivation for punishment, and it serves as the
sole determining ground for punishment. As Kant himself
puts it:
Punishment by a court (poena forensis). .. can never be
inflicted merely as a means to promote some other good
for the criminal himself or for civil society. It must always
be inflicted upon him only because he has committed a crime. .
. . He must previously have been found punishable before
any thought can be given to drawing from his punishment
something of use for himself or his fellow citizens.^
In punitive matters, the Kantian must ignore matters of
social policy and other benefits (or harms) that result
from punishing wrongdoers, and instead focus solely on
the criminal's desert. "The vice of regarding punishment
enfirely from the points of view of reformafion and deter-
rence lies precisely in forgetfing that a just punishment is
deserved."' The sole reason for punishing a person is
because that person has committed a crime, and there is
never a case in which a criminal's just deserts should be
waived for other considerations of policy or social
benefit.^"
According to retributivist theory, a crime leaves the
moral fabric of the universe "out of balance," and
purushment is needed to correct this imbalance. Inherent
in the notion of desert is a belief that the criminal has
punishment coming to her that stands in a direct
relationship to the crime she has corrunitted. Thus there
should be some logical cormection (proportional or
otherwise) between the punishment inflicted and the
crime that was committed. In his Metaphysics of Morals,
Kant explicitly frames this idea in terms of lex talionis:
But what kind and what amount of punishment is it
that public justice makes its principle and measure?
None other than the principle of equality (in the
position of the needle on the scale of justice), to incline
no more to one side than to the other. Accordingly,
whatever undeserved evil you inflict upon another
within the people, that you inflict upon yourself. . . .
But only the law of retribution (ius talionis) . . . can
specify definitely the quality and the quantity of
punishment."
In a somewhat more nuanced form, Hegel describes the
retributivist model of pimishment as a balancing act of
sorts, in which a proportional punishment restores the
moral harmony that the wrongdoer has shattered:
The cancellation of crime is retribution in so far as the latter,
by its concept, is an infringement of an infringement, and in
Winter/Spring 2005
33
so far as crime, by its existence, has a determinate
qualitative and quantitative magnitude, so that its negation,
as existent, also has a determinate magnitude. But this
identity [of crime and retribution] which is based on the
concept, is not an equality in the specific character of the
infringement, but in its character in itself—i.e. in terms of its
value.'^
Thus, the rationale for the retribufivist's emphasis on
punishment stems from a quasi-metaphysical thesis
about the nature of good and evil—the punishment
"cancels" or overcomes the crime by having some logical
relation to it.
One of the central arguments for a retributivist ap-
proach to war crimes (and the best one to my mind) is
that no other available theory of punishment could
possibly make sense of such trials, at least as they exist in
their contemporary forms. Although consequentialist
arguments for criminal trials and criminal punishment
are easily available in a domestic sphere—deterrence, a
sense of social satisfaction at punishing evildoers, the
possibility of reforming criminals, and so forth—^none of
these is obviously applicable to a policy of war-crimes
trials. Consequentialists could jusfify some war-crimes
trials when circumstances are just right, but not the idea
of these trials as such, not a general policy of trying once
powerful individuals or current political leaders for mass
atrocifies, as many of the ICC's proponents desire. None
of these traditional utilitarian rationales for punishment
fits the unique circumstances that surround most major
war-crimes trials, much less the idea of a permanent
intemational tribunal.
None of the traditional utilitarian
rationales for punishment fits the unique
circumstances that surround most
major war crimes trials.
The differences between war-crimes trials for high
officials and domestic trials for ordinary criminals are
numerous, and are devastating from a utilitarian
perspecfive. These differences stem from several sources.
First, the ICC works in a unique political envirorunent of
sovereign states, each with a great deal of independent
military and political control over its own territories.
Further, the individuals that the ICC is charged with
prosecuting are typically powerful or well known in
their home territories. Finally, there is a crucial psycho-
 Aaron Fichtelberg /
logical difference between domesfic and intemational
criminal trials. In war-crimes trials an international body
consisting of outsiders ("them") is accusing the member
of an ethnic group or polifical orgaruzation ("us") with
acting in a grossly criminal fashion. Such accusafions
cut deeply into the powerful psychology of group identity
in a manner that few domestic trials do (save only the
most highly public, racialized trials). Together, these
differences place the ICC in a precarious political and
cultural context that could easily lead to disastrous hu-
manitarian consequences and undercut the utilitarian
jusfificafions for war-crimes trials.
Very rarely have intemational criminal trials been
viewed as fair by supporters of the accused criminals, as
they often see such trials as motivated by base political
interests. Many people indicted by the International
Criminal Tribunal for the Former Yugoslavia (ICTY), such
as former Bosnian Serb leaders Radovan Karadic and
Ratko Mladic, remain hidden by an army of Serbian
supporters throughout Yugoslavia.'^ None of Karadic's
supporters have accepted the legitimacy of these trials
nor would they respect the outcome of a trial, regardless
of any facts that would come to light during its pro-
ceedings. To this day, many Europeans, including many
Germans, look upon the Internafional Military Tribunal
(IMT) at Nuremberg with skepficism and (atfimes)open
contempt. They quickly cite a litany of war crimes com-
mitted by Allied forces that were conveniently ignored
by the prosecufion and were excluded from use by the
defense. Thus the different envirorvments of these trials
lead them to have a very different impact on the inter-
nafional public at large, undermining many ufilitarian
arguments for purushment.
Very rarely have international criminal
trials been viewed as fair hy supporters of
the accused criminals as they often see
such trials as motivated by
base political interests.
Likewise, it is hard to make an argument that such
trials would have a deterrent effect on future war
criminals. War criminals usually operate in a world where
life is valued cheaply, and death is the expected price for
polifical failure. Most dictators rise to power using illegal
and bloody tacfics, and recogruze that their lives depend
Criminal Justice Ethics
34
on holding onto this power. Thus, it is hard to imagine
that the threat of prosecution is enough to intimidate any
would-be war criminal from doing whatever she deems
necessary in order to hold onto her posifion. Further,
such trials have been too infrequent and too irregular to
intrude on the minds of would-be evildoers. Many war
criminals have nestled themselves comfortably in a pro-
tecfive exile provided by a powerful state, which has
assured them that they will be protected against answer-
ing for their crimes. A leader of a more conventional
state, parficularly one who rules for a finite durafion,
may be inclined to give more weight to a potenfial future
prosecufion when choosing matters of policy; these are
not the leaders whom one would expect the ICC to prose-
cute. It is hard to believe that the threat of possible crimi-
nal sancfions will seriously impact on the decisions of
future dictators.
Finally, it is hard to make sense out of reform as a
rafionale for criminal punishment in the internafional
context. War criminals are not usually products of a poor
upbringing or other social disadvantages that might lead
to criminal behavior, and thus are not likely to be suitable
subjects for reform. The psychology of dictators is a com-
plex matter and it is dangerous to over generalize, but
they are usually ideological fanafics or power mongers
who commit their crimes out of a narcissisfic sense of
mission or for crude polifical or economic gain. The possi-
bilifies of reforming individuals who are willing to cause
such a catastrophic amount of damage in pursuit of their
own ambifions seem weak at best. Further, it is difficult
to see the reform of one individual (who would very
likely never gain political power again) as a strong
argument for the costly and difficult ordeal that a war-
crimes trial represents. Hence, reforming war criminals
does not seem to be a compelling ground for trying and
convicting war criminals.
Thus the three central utilitarian arguments for
punishing criminals—deterrence, reform, and the
maintenance of a general sense of security—are not per-
suasive, given the unique circumstances surrounding
war-crimes trials. Of course, utilitarians can jusfify certain
war crimes trials when circumstances are just right. The
IMT at Nuremberg or the two ad hoc tribunals that were
arranged for Rwanda (ICTR) and the ICTY are three
cases in which ufilitarians and retributivists can both
acknowledge the legitimacy of a trial. In Nuremberg, the
Germans were utterly defeated and had no possible
chance of opposing, much less retaliating against, the
trial for their now disgraced Nazi leadership. Their trial,
while to this day viewed with a certain amount of
skepficism by many, served an important historical and
 Crimes Beyond Justice? /
pedagogical funcfion: setting in record the responsibility
of the German high leadership for aggression in Europe
and the atrocifies committed under its command. In
Yugoslavia and Rwanda, much of the conflict had ceased
before the trials began, and many of the criminals had
already been captured. Both Rwanda and Yugoslavia
were remote comers of the world, with little power to
resist the will of the United Nafions Security Council
and little capacity to fight back. These trials were "fixed"
in the sense that those with polifical objecfions to the
trials were powerless to do anything about them. Hence,
they were in many senses the trials of the victors over the
vanquished and the vanquished could do little in res-
ponse. Solely from the standpoint of a ufilitarian calculus,
it is clear that there were good reasons to support each of
these trials.
The problem arises for consequenfialists, however,
when we tum away from temporary, ad hoc tribunals
and historical anomalies like Nuremberg and examine
the rafionale for a permanent court such as the ICC.
Unlike the ICTY and the ICTR, the ICC is a standing
institution charged with the task of pursuing war
criminals regardless of their nafionalifies or the nature of
the conflict where their crimes took place. A number of
the polifical tools that have been available to minimize
the risks of such trials, such as a limited jurisdiction
ratione temporis, will not be available for a permanent
court—it will be free to prosecute war crimes virtually
wherever they occur. The court will be able to indict an
accused criminal whether he is popular in his home
state or not, whether he is powerful or not, and regardless
of whether the prosecufion will be beneficial for the overall
well-being of those concemed. Leading figures on the
world stage, presidents, prime ministers, generals, and
warlords, many at the height of their power and the peak
of their popularity, will be indicted by the court and
asked to account for their acts. To open the door to such
prosecufions is to court a potential disaster from a conse-
quenfialist standpoint, disasters with a likelihood that
precludes any possible benefits that they would provide.
A powerful leader would undoubtedly hold onto the
reins of control much more fighfly than she might other-
wise do were the humiliafion of a trial a likely possibility
after abdicafion. This would most likely drastically raise
the cost of dislodging her in terms of lives and destrucfion.
This was the case with the attempt to try Charles Taylor
of Liberia for alleged crimes committed during the civil
war in Sierra Leone. President Taylor held onto power
much longer than he would otherwise have done because
he feared extradifion to the court to answer for supporting
factions in Sierra Leone's civil war. He left Liberia only
Winter/Spring 2005
35
after he was offered a guarantee that Nigeria, the country
that offered him sanctuary, would not extradite him to
face criminal charges in Sierra Leone. The threat of such
prosecution forces powerful war criminals into a choice
between holding onto power, whatever the cost, and
facing the humiliafion of a courtroom proceeding coupled
with the label "accused criminal." As most dictators al-
ready place a low price on the lives of their subjects, this
choice would probably not be difficult.
A powerful leader would undoubtedly
hold onto the reins of control much more
tightly than she might otherwise do
were the humiliation of a trial a
likely possibility after abdication.
With a permanent court, this scenario threatens to
repeat itself innumerable times. Large numbers of
powerful polifical leaders could be charged with any
number of criminal acfivities. Some of these crimes may
have been necessary for political reasons of state, or may
have resulted from the complex polifical entanglements
that are an unfortunate necessity in global polifics. To
this extent they may have been unavoidable. A permanent
court that was unconstrained by the limitations placed
on the ad hoc tribunals for Yugoslavia and Rwanda will
linger as a permanent threat to both world peace and the
very human rights that the ICC has been designed to
promote. As Rachel Bronson persuasively argues:
The problem with war crimes tribunals, which have
become fashionable for human rights activists and the U.S.
Congress, is that they sacrifice the lives of the living in
order to provide justice for the dead. By limiting a regime's
incentives for giving up power, war crimes tribunals have
the potential to perpetuate the very regimes they target.
***
The question to consider when seeking the indictment of
key regime officials is whether it increases or decreases the
chance of changing the incumbent leadership.
It is unlikely that Augusto Pinochet of Chile would have
given up power if he expected to spend his final days in a
British custody prosecuted under European law. That is
why the Chilean government allowed him the honorary
position of senator-for-life with immunity from
prosecution, despite the brutality of his regime."
The ICC and its affiliated insfitutions threaten to become
rogue actors, run by individuals who make bad political
 Aaron Fichtelberg / 36
situafions worse by enforcing a rigid legal order on the
complex and dangerous world of internafional politics.
Under these circumstances, even a rule utilitarian
should object to the ICC. While it is true that rule ufili-
tarians are willing to follow norms more broadly than do
orthodox act ufilitarians—even when the rules do not
produce the best outcome—rules are not jusfified on any
groimds other than that adherence to them will (overall)
produce greater ufility than decisions made on a case-
by-case basis. ^' But this clearly would not be the case
with an insfitufion such as the ICC. The ICC exists to
prosecute only the most contenfious crimes, cases in
which it is extremely unclear that overall ufility would
be maximized.'* The point is that, in such cases, adherence
to rules is not guaranteed to maximize overall ufility,
and as I have argued above, there is ample reason to
believe that rules (at least the rules of criminal law) will
Umit ufility in intemafional polifics. The ufilitarian defer-
ence to rules can be jusfified only by reference to expected
ufility. This "bet" that prosecuting all war criminals
(again, regardless of circumstances) will be ufilitariarJy
better for humanity is too risky and the chances of this
insfitufion causing great harm are too high.
The statute of the ICC has made certain concessions to
such utilitarian concerns. Built into the ICC statute are
numerous "escape mechanisms" that jurists may use to
evade the burden of prosecuting a suspected war
criminal, should it appear that it will result in disastrous
consequences. For example, the court has what is referred
to as "complementary jurisdicfion," which gives states
priority in trying their own nafionals for crimes that fall
under ICC jurisdicfion.'^ Also, the prosecutor is given a
fair amount of discretion in deciding who merits
prosecufion—for example, she can avoid the burden of
conducting prosecufions for crimes that are trivial or
parficularly contenfious. Finally, as Michael Scharf points
out, "the Rome Statute is purposely ambiguous on the
quesfion of whether the ICC should defer to an amnesty-
for-peace arrangement where there is no intemafional
duty to prosecute."'* These sorts of devices allow the ICC
to avoid disturbing fragile negotiafions by publicly
indicting a significant player in peace processes.
However, these "escape mechanisms" are not
improblemafic. Exempfions from prosecufion given to
individuals for pragmafic or ufilitarian reasons may be
sound common sense, but they are anfithefical to the
legalist principles that are inherent in the rule of law.
The ideology of legalism and the related belief that the
law must be fairly and imparfially applied to all under
its jurisdicfion stands at the heart of the ICC and its
affiliated bodies. As Judith Shklar describes this view.
Criminal Justice Ethics
legalism "is the ethical atfitude that holds moral conduct
to be a matter of rule following... and moral relafionships
consist of dufies and rights determined by rules."" For
an international criminal court to be considered a
legifimate insfitufion by its own intemal logic, its dictates
must be imparfially applied to everyone, regardless of
circumstance or posifion. Such rules apply to all (regard-
less of the polifical context) or they legifimately apply to
none. While it is undoubtedly true that courts are
frequently limited by financial or logisfical constraints,
and no fair-minded person expects courts to apply jusfice
perfectly, the principle underlying the rule of law as a
regulafive ideal remains: selecfive or arbitrary prose-
cufions are inimical to jusfice and the rule of law. Such a
selecfive system will provide only a "sham trial," a
"polifical trial," or "a mockery of jusfice" to those who
esteem the rule of law as a guiding principle.
For an international criminal court to be
considered a legitimate institution by its
own internal logic, its dictates must be
impartially implied to everyone,
regardless of circumstance or position.
A piecemeal approach to prosecuting war crimes
would have two different probable results. On one hand,
selective prosecutions would undermine the moral
impetus for the trials themselves (they would look less
respectable to their legalist proponents). This would
increase skepficism toward the trials as obvious war
crimes would be left unpunished. On the other hand,
they would most likely limit what little posifive effect on
global society such trials might have, as they would
undoubtedly be seen as a capricious and irregular form
of punishment. Those who might be deterred from mass
atrocifies by the threat of prosecufion by the ICC would
be less likely to be deterred were they to believe that they
could use their power to evade prosecufion. From a
utilitarian perspecfive, the proponents of war-crimes trials
are locked into a legalisfic logic that either threatens to
make bad polifical situafions worse or ultimately proves
a fufile gesture.
Some consequenfialist theorists have tried to hold onto
the legifimacy of war-crimes trials by taking a pragmafic
approach, maintaining that they can, in certain cases.
 Crimes Beyond Justice? /
prove useful for global society. Thus, Martha Minow
argues that, despite their numerous flaws, war-crimes
trials can be useful for the future by laying the foundafions
for an intemafional order that is organized in accordance
with the rule of law. Even if these trials are illegitimate
now, they represent only the beginning, a promissory
note as it were, for a future, law-governed intemafional
order:
Even when marred by problems of retroactive application
of norms, political influence, and selective prosecution,
however, trials can air issues, create an aura of fairness,
establish a public record, and produce some sense of
accoimtability. Then claims for the power of the rule of law
can grow, even in the face of demonstrable failures in its
implementation.^"
Of course the possibility that these trials could promote
the global rule of law is a slim consequenfialist reed on
which to perch these trials. The reed looks even thirmer
when we contrast these potential (and somewhat
hypothetical) benefits with the immediate and serious
damage that the ICC could cause. Further, Minow's hope
for a future of perpetual peace organized in accordance
with the law of nafions begs the question of whether or
not introducing the rule of law into internafional affairs
(or into the polifical and moral minefield of transifional
justice) would be a good thing for the preservation of
global peace.^' Debates about the connection between
law and world peace in intemafional relations have
proven inconclusive, to say the very least.
For similar reasons Mark Osiel's claims that war-crimes
trials can be jusfified because they establish a "coUecfive
memory," a shared understanding of a traumatic event,
is unsafisfactory. For Osiel, the unfaimess of these trials
is outweighed by the funcfions that they play in the
public sphere: helping a community to transifion from
dictatorships and other unhealthy political environments
to a unified, cohesive group. As Osiel puts it.
There are two very different ways in which the law in
general, and criminal prosecution of administrative
massacre in particular, might contribute to social solidarity....
Solidarity results from the awareness of a common history
judged by common standards, a history from which
unequivocal lessons for future conduct will be learned by
all. The second view does not expect legal proceedings to ...
produce any society-wide consensus on such matters ...
the proceedings are founded on civil consensus. They
produce a kind of solidarity embodied in the increasingly
respectful way that citizens can come to acknowledge the
differing views of their fellows.^
Of course, these "myth making" aspects of war-crimes
trials depend upon a number of empirical factors—issues
Winter/Spring 2005
37
about the polifical and cultural circumstances in which
the trial takes place. These myths must ulfimately bump
against deeper, more powerful, and attracfive myths of
patriofism, heroism, and nafional vicfimization.^^ The
power of such counter-myths to block out other, less
pleasant narratives of complicity in atrocity is
demonstrated repeatedly in modem history (such as with
the American treatment of Nafive Americans). Regardless,
Osiel's asserfion may be an acceptable rationale for ad
hoc tribunals, provided they are given a short leash
(although the damage that can be done to the notion of
the rule of law may dimirush any benefit provided by
this new-found memory). As a justification for a
permanent court like the ICC, his claim is significantly
weaker.
From a utilitarian perspective, the
proponents of war crimes trials are locked
into a legalistic logic that either threatens
to make bad political situations worse or
ultimately proves a futile gesture.
The narratives that unfold in the prosecution of
intemafional criminals are very different from the Truth,
in the strong sense, that many seek. They are even less
likely to produce a version of events that would be most
conducive to the greatest happiness for the greatest
number. The adversarial approach used by intemafional
tribunals and the intricate legal reasoning that they
require are not designed to set down the facts once and
for all or to develop a coherent narrafive of events. Rather
these processes are designed to determine the guilt or
innocence of a specific individual for a specific crime.
The Tadic case in the ICTY is an excellent example of the
conflict between these two different funcfions.^* Dusko
Tadic was charged by the prosecutor with numerous
crimes perpetrated in wartime Bosnia but was not found
guilty of all of them. In one notorious example, he was
acquitted of the charge of ordering a Bosnian Muslim to
bite off the genitals of a compatriot. Significantly, however,
he was not absolved because he had nothing to do with
the crime, but rather because it could not be proven
beyond a reasonable doubt that he was present to give
the command. As Mark Drumbl observed:
It therefore appeared to the public at large that the
allegation of sexual torture had been dismissed while, in
 Aaron Fichtelberg /
fact, all that had been established was that it could not be
proved beyond a reasonable doubt that Tadic was the
perpetrator. The important point—that Harambasic was the
victim of sexual torture motivated entirely by ethnic hatred
and a desire to persecute the Bosnian Muslim population—
was reduced in importance amid this search for microscopic
truth. Harambasic's tragedy was dismissed not because it
did not happen, but simply because certain people were not
present when it happened.^
Not only were the vicfim's claims dismissed in the public
mind, but a skepfical Serbian public was given grounds
for cynically denying the account of the trial. As Carrie
Gustafson argues, "A particularly misguided claim... is
that criminal prosecufions are producfive of 'the Truth.'"^*
We may go even further than Gustafson: criminal
prosecufions fail not only to establish the Truth with a
capital T, but are equally likely to fail at constructing a
convenient lie. The stakes are too high, the processes too
complex, and the disputes run too deep for any legal
proceedings to provide an adequate grasp of a parficular
atrocity.
It is for these reasons that consequenfialists carmot
make sense out of the idea of a permanent intemafional
criminal court such as the one that has resulted from the
Rome Statute. The only posifions that ufilitarians may
legitimately hold towards the ICC are either outright
opposifion to the court or, perhaps, the hope that cooler
heads will prevail and the damage caused by the court
will tum out to be mirumal. They could, of course, hope
that the court becomes a sort of "noble lie," giving lip
service to the obligations imposed by the rule of law, but
demurring when the cost of a parficular prosecution is
too high. Or, altemafively, the Security Council may keep
the court on a fight leash, constricting its behavior when
it "runs rampant" and attempts to prosecute polifically
powerful criminals, thus reducing the court to a second-
rate intemafional institufion. These opfimisfic scenarios.
II Arendt's Objection as a Retributivist Problem
Having defended a retributive foundation for a
permanent intemational criminal court, I will now turn
to the crificism advanced by Arendt in the epigraph to
this essay. Unlike consequenfialist or realist criticisms of
war-crimes trials, Arendt's crifique is intemal to the
retribufive theory of punishment, taking its claims about
the philosophical justification of punishment at face
value. Her objecfion is not about the political or legal
appropriateness of war-crimes trials or their ability to
Criminal Justice Ethics
38
of course, do not provide a philosophical foundation for
the ICC so much as seek to reconcile utilitarianism with a
polifical inevitability. Regardless, it seems to me that
ufilitarians cannot ulfimately make sense out of the philo-
sophical impulses behind such a body in the way that
retribufivism does.
Although it is possible that other theories of punish-
ment may make some sense out of the justification for the
ICC, an exhaustive critique of restorative and the
expressive theories would go beyond the scope of this
analysis. Nonetheless, there is good reason to believe
that the retributive model of punishment is the best fit,
not only for the legal regime of the ICC, but also the
broader human rights revolufion of which this court is
only a part. Human rights are rooted fundamentally in a
respect for persons that is expressed in the tenets of
Kanfian moral thought. For Kant, the individual is under-
stood as a rafional, autonomous actor who determines
her own behavior and deserves respect as an "end in
itself." This is also the central principle of the modem
human rights regime. The idea of individual criminal
responsibility for acts and the idea that all rafional beings
(including the accused war criminal) deserve respect are
mutually linked principles that find expression in Kant's
categorical imperafive: "Act orJy on that maxim whereby
you can at the same fime will that it should become a
universal law."^^ Modem human rights law and modem
intemational criminal law rest on the same principle: for
an individual to deserve respect, all that is required is
that individual obey the moral law (and accept her
punishment when she violates it). When an individual
freely violates the law, she deserves punishment. The
philosophical principles of the modem human rights
regime and the principles of modern international
criminal law find their shared philosophical roots in
Kanfian moral theory.^*
produce a lasting peace; nor does it make reference to the
unique polifical contexts that inevitably surround these
trials. Rather, Arendt's critique attacks the logic of the
retributive theory on its own terms. Her point is that,
given the expectations of retribufivism—specifically the
requirement that the criminal's punishment somehow
balances out or compensates for the crime—^justice in
any meaningful sense is impossible for war criminals.
 Crimes Beyond Justice? /
As was previously argued, the retributive theory of
punishment rests on the nofion that punishing the guilty
individual or group balances or makes up for the crime
that was committed. However, if Arendt is correct, then
mass atrocities are unique kinds of wrongdoing, so
horrible that they surpass any traditional model of
criminal justice. In her words, they overstep and shatter
any legal system. These sorts of crimes, the crimes that
the ICC has been designed to prosecute, cannot be
understood by appealing to the categories of tradifional
theories of punitive jusfice. To follow Gerald Gahima's
epigraphical suggesfion, we should "use another word"
to describe our responses to them. There is no conceivable
punishment that would balance out the crimes that were
done by the Nazis, the Hutu militias, the Serbian para-
militaries in Bosnia, or Saddam Hussein. Even if human
rights constraints were removed from the range of
possible punishments, and Adolph Eichmarm had been
brutally tortured and executed, we could not claim that
the pain and suffering inflicted on that individual some-
how balanced the execution of millions. As Arendt points
out, "no punishment is severe enough" to match, com-
pensate, or stand as an equivalent to these crimes. One
does not have to resort to the mysfical, postmodern
language suggested by literary approaches to these
problems in order to recognize the problem. It is clear
that no possible (let alone conventionally acceptable)
punishment seems to fit the crimes that war-crimes trials
are charged with punishing. They may shoot, hang, or
imprison these criminals but they may not bring them to
/Hshce, philosophically speaking.
What Arendt's objecfion rests upon is an apparent
weakness that runs throughout retribufive theory—its
undecideability. Simply put, the relationship between
the crime committed and the punishment imposed can
never be clearly determined, even if one applies a strict
principle of lex talionis. There seems to be no clear way to
determine an appropriate punishment for a parficular
crime. Retributivists are skilled at providing arguments
as to why punishment is jusfified, but the next step, the
philosophical reasons for applying a particular punish-
ment, is surprisingly overlooked in the vast majority of
retributivist literature. One of the most famous con-
temporary retribufivists, Jeffrie Murphy, simply brushes
aside this concern:
Surely the principle jus talionis, though requiring likeness of
punishment does not require exact likeness in all respects.
There is no reason in principle (though there are practical
difficulties) against trying to specify in a general way what
the costs in life and labour of certain kinds of crime might
be, and how the costs of punishments might be calculated.
Winter/Spring 2005
39
so that retribution could be understood as preventing
criminal profit. And it is certainly possible retributively to
rank punishments so that the most serious punishments are
matched with the most serious offenses.^'
The lack of analysis of this problem is not terribly
troubling when we deal with ordinary crimes, such as
robbery, assault, and murder. While it is true that it is
difficult to determine what punishment would be appro-
priate for a mass murderer who is punished in a domesfic
court, this problem is not seen as devastating in this
context. We are comfortable with this problem of "fit" in
domestic theories because in the domesfic sphere this
task is delegated to legislatures, judges, and juries who
use their own reasoning to determine an appropriate
punishment. Thus, even if the punishment imposed is
not an exact equivalent to the crime, there is a close
enough parity for most to be comfortable that justice was
done. When we move to address the grossest sorts of
crimes, mass atrocities that "shock the conscience of
mankind," our comfort with this ambiguity quickly
evaporates.
The retributive model of punishment is the
best fit, not only for the legal regime of the
ICC, but also the broader human rights
revolution of which this court
is only a part.
Anybody who looks at the sorts of crimes that the ICC
is charged with addressing cannot deny that they merit
the severest possible form of punishment. Thus, it is not a
question about the location of various crimes on the
retributivist metric of appropriate punishments (a
quesfion of whether one crime is objectively worse than
another). Anybody who is asked to rank various crimes
in order of their gravity would place those under the
jurisdiction of the ICC (genocide, crimes against
humanity, such as slavery and torture, war crimes, and
aggression) at the top of their list. If they fail to do so, we
would find them to be morally deficient in some way.
Thus, it is not an issue of disagreements regarding the
severity of different kinds of punishment—the point is
that there seems to be no imaginable or possible
punishment, no matter how severe, that could match the
gravity of the crimes. When the range of punishments
available—when any possible punishment—seems to
 Aaron Fichtelberg /
pale in comparison to the crime committed, there is no
reason to believe that a retributivist view can make
philosophical sense of the very act of punishment. This,
coupled with the devastating havoc that intemafional
trials wreak, makes war-crimes trials, and the retribufivist
theory of punishment upon which they rest, seem both
intellectually suspect and morally dubious.
In response to this crifique, the retribufivist must answer
three different quesfions. First, is there an appropriate
punishment for these extreme crimes? Second, what is it?
Third, is such a punishment possible? If retribufivists cannot
provide answers to these quesfions then, not only does
retribufivism fail, but also the entire justificafion for the
modem effort to establish a rule of (criminal) law in the
intemafional sphere fails with it. We are stuck with either a
cynical "noble lie" that perverts the rule of law for other
purposes or an acceptance that jusfice has nothing to say in
these cases and that other ends should take precedence.
Ill "Retributivism Revisited," or: A Retributivist Response to Arendt
In this final secfion, I defend a retribufivist approach in
intemafional criminal jusfice against Arendt's objecfions
by arguing that this tradifion can formulate an appropriate
sort of punishment for war crimes. This response requires
a retum to Kant's views on punishment and, in parficular,
his views about punishing individuals for a unique
category of crimes, which he labels "crimes against
humanity" {Verbrechen an der Menschheit). Kant acknowl-
edges that such crimes are unique in that they lack any
immediately apparent equivalent that could be imposed
on the criminal by the state. Explaining this concept in
tum requires a further step back into Kant's broader
views regarding morals, history, society, and human well-
being in general. Kant's response to uniquely strange
and bizarre crimes, crimes that dwell beyond the easy
applicafion of a retribufivist formula, the crimes that
concern Arendt, tell us something significant about the
rafionale of punishment. Once I have set out Kant's views,
I then briefly retum to the modem context and translate
Kant's thought into the idiom of modem inter-nafional
criminal law.
As was menfioned above, the overarching principle of
just pimishment for Kant is a version of the lex talionis.
The criminal's act defines the appropriate punishment.
However, this does not mean that every crime finds an
immediate and obvious punifive equivalent. Although
murder and theft find (reasonably) clear punishments.
Criminal Justice Ethics
40
This view was implicit in the suggestions of Hans
Morgenthau and Winston Churchill at the end of World
War n when they called for the summary execufion of the
Nazi leadership. As Anthony Eden, the Brifish foreign
secretary at the time put it:
[A] distinction should be drawn between outstanding
enemy leaders, such as Hitler and Mussolini and other
enemy nationals. Judicial procedure would seem
inappropriate for dealing with Hitler and Mussolini and
with a limited number of important enemy leaders such as
Goring, Goebbels and Himmler.... The guilt of such
individuals is so black that they fall outside and go beyond
the scope of any judicial process.^
In lieu of the trappings of a criminal trial, the next best
option is the summary execufion of such individuals. If
law and right are inadequate (and doing nothing is like-
wise not an opfion), force and open brutality may be the
only acceptable subsfitute.
namely, execufion'' and the loss of property,'^ there are
plenty of crimes that find no clear corresponding harm,
such as is the case for rape or child abuse. Kant addresses
this problem in the Metaphysics of Morals, in his charac-
teristically obscure fashion. In discussing possible
punishments under a civil consfitufion, he refers to crimes
for which no appropriate punishment is available. Al-
though he is largely concemed with rape and other sex
crimes, he does refer to other kinds of situafions for which
a fitting punishment is "impossible." "But what is to be
done in the case of crimes that carmot be punished by a
retum from them because this would be either impossible
or itself a punishable crime against humanity as such,
for example, rape as well as pederasty or besfiality?"^^
While there is no apparently acceptable punishment for
these types of crimes (for example, abusing a pederast's
own child or abusing the pederast himself are obviously
unacceptable punishments), Kant is also clear that these
crimes nonetheless merit punishment and such punish-
ment cannot be left to the vagaries of the individual
judge's will. This latter opfion "would be UteraUy contrary
to the concept of punitive justice. For the only time a criminal
cannot complain that a wrong is done him is when he
brings his misdeed back upon himself, and what is done
to him in accordance with penal law is what he has
perpetrated on others, if not in terms of its letter at least in
terms of its spirit."'* There must be a fitting, rafional
 Crimes Beyond Justice? /
response to these crimes for their punishment to stand
up to intellectual scrutiny.
Because such crimes cannot be punished in kind (as
this would be "impossible"), the basis for legifimate
punishment must be found in the unique kind of violafion.
For Kant, these crimes are not crimes against the state or imperafive—"act only in accordance with that maxim
crimes against a particular person, but are rather crimes
that go against all of human civilizafion. Thus they are
crimes against humanity and unique punishments are
required.
The punishment for rape and pederasty is castration .. .,
that for bestiality, permanent expulsion from civil society bound
[biirgurlichen Gesellschaft], since the criminal has made
himself unworthy of human society.—Per quod quis peccat,
per idem punitur et idem.^—The crimes mentioned are called duty, selflessly following the categorical imperative
urmatural because they are perpetrated against humanity
While the punishment for rape and child abuse is inter-
esting,"" it is (rather unfortunately) the punishment for
the crime of bestiality that interests me here.'' It is
significant not because of the particular crime for which
he is advocafing punishment, but because of the unique
nature of the punishment itself. As a crime against
humanity, a crime that has no direct retribufivist equi-
valent, expulsion from civil society suggests some unique
way for a retribufivist to handle particularly strange and
odious offenses.
In order to understand Kant's claims about "crimes
against humaruty" and their related pimishment, it is
important to set them against the background of Kant's
views about the nature of civil society and the role that
these views play within his larger moral, social, and
political philosophy. It is only against this background
that one can appreciate the significance of the
punishment that he proposes. Having done this, I retum
to the concrete issue of punishment for war criminals
and evaluate it in terms of Kant's theories.
For Kant, what makes human beings different from all
other mortal beings is the faculty of reason, or put more
technically, our ability consciously to prescribe laws to
ourselves that determine our behavior. "Everything in
nature works according to laws. OrJy a rafional being
has the power to act according to his conception of laws,
i.e., according to principles, and thereby has he a will.
Since the derivafion of acfions from laws requires reason,
the will is nothing but pracfical reason."" Although
animals behave in a lawful fashion from insfinct, they do
not prescribe themselves laws in the matter of a
conscious, rafional agent. This capacity to choose our
objecfives and our means to achieve these objectives
Winter/Spring 2005
41
distinguishes humans from other creatures, and stands
as the basis of Kant's ethical system. To be moral for Kant
is precisely to have the ability to give oneself the moral
law, to make oneself conform to rafional, universally
acceptable standards of behavior. The categorical
through which you can at the same fime will that it
become a universal law"^°—is simply the most elemental
version of this principle, "the universality of a law as
such.""
For Kant, the faculty of reason is not only intrinsically
up with the concepts of morality and human
autonomy, but is addifionally the only part of the human
being that deserves respect. When we act from a sense of
independent of,any sort of gain, we act out of respect for
the moral law, an atfitude that entails specific moral
consequences for Kant. To be an object of respect {Achtung)
is to have a worth beyond any material goods.
As a crime against humanity, a crime that
has no direct retributivist equivalent,
expulsion from civil society suggests some
unique way for a retributivist to handle
particularly strange and odious offenses.
Inexperienced in the course of the world and incapable of
being prepared for all of its contingencies, I only ask myself
whether I can also will that my maxim should become a
universal law. If not, then the maxim must be rejected, not
because of any disadvantage accruing to me or even to
others, but because it cannot be fitting as a principle in a
possible legislation of universal law, and reason exacts from
me immediate respect for such legislation. Indeed I have as
yet no insight into the grounds of such respect.... But I at
least understand that respect is an estimation of a worth
that far outweighs any worth of what is recommended by
inclination.*^
The proper mofive for an acfion carmot be a desire for a
worldly object or a selfish desire for happiness, but rather
must be an imparfial awareness of the dufies that emanate
from our own reason. Respect, then, is just the awareness
that we bind ourselves through the moral law that our
own practical reason provides.
It is this capacity to act out of respect for the moral law
that gives humans a unique moral status and makes
 Aaron Fichtelberg /
them deserving of a parficular sort of treatment. Because
each of us is capable of choosing our code of behavior,
we ought to respect the autonomy and freedom of all.
This is to say that no rafional beings may be treated
solely as objects to be used and manipulated as we move
through the world (as mere means to be used to achieve
some other ends), but must be respected as ends in
themselves:
Now I say that the man, and in general every rational
being, exists as an end in himself and not merely as a
means to be arbitrarily used by this or that will. He
must in all his actions, whether directed to himself or
also to other rational beings, always be regarded at the
same time as an end. . . . [R]ational beings are called
persons in as much as their nature already marks them
out as ends in themselves, i.e., as something which
may not be used merely as a means and hence there is
imposed thereby a limit on all arbitrary use of such
beings, such are thus objects of respect.""^
For Kant then, our ability to reason is inextricably bound
up with our right to be respected by others. Without
reason we are mere "things" that possess only a "relafive
worth. "^ All rational beings, regardless of age, race,
gender, and so forth, are deserving of equal treatment
and equal respect.
According to Kant, civil society is the polifical extension
of human reason and simultaneously stands as its highest
form. In the polifical context, reason sets out rafional
principles for organizing human social life and at the
same fime the faculty of reason itself becomes fully
developed in civil society. While reason is in some sense
a natural phenomenon, unlike other natural faculfies
(such as smell) it is not sui generis, but requires broader
social structures in order to be culfivated and refined
inside each individual. "It is only in such a [civil] society
that nature's highest objective, namely, the highest
attainable development of mankind's capacifies, can be
achieved." It is in this society that we realize ourselves
completely as rafional beings, for, "In man (as the sole
rational creature on earth) those natural capacities
directed toward the use of his reason are to be completely
developed only in the species, not in the individual."^'
Although reason is a natural human faculty for Kant,
without the benefits and demands imposed on it by civil
society it must linger in a stunted, underdeveloped form.
Civil society plays a crucial role in this empirical
development and culfivafion of human reason. It is in
the context of this polifical order that the individual is
allowed to develop her natural abilities to reason,
fulfilling her "purpose" in nature. A law-governed
rational society balances the "unsocial" aspects of
Criminal Justice Ethics
42
human beings (the characteristic of "wanting everything
to go according to [their] own desires"*^) with the social
cooperafion necessary for all to exist, creating a synergy
that promotes human flourishing, transcending our
rudimentary, animal existence. Thus it is only in this
political association that reason itself may be properly
cultivated, that an individual "feels himself to be more
than man, i.e., feels himself to be more than the
development of his natural capacities."^''
The formal condition under which nature can alone achieve
this final aim [of the development of man's natural
predispositions] is that constitution of human relations
where the impairment to freedom which results from the
mutually conflicting freedom [of the individuals] is
countered by lawful authority within a whole called civil
society. For only in this constitution of human relations can
our natural predispositions develop maximally."^
While reason is in some sense a natural
phenomenon, unlike other natural faculties
(such as smell) it is not sui generis, but
requires broader social structures in
order to be cultivated and refined
inside each individual.
For Kant, human reason is not only a cognifive faculty by
which to arrive at some form of truth, but it also represents
the telos of human society and of the human being itself. It
is only in civil society that we become fully realized
human beings.
Along with the requirement that they enter into civil
society, Kant argues that there is an addifional step that
rafional beings must take in the development of a wholly
rafional social order: creating a state of global perpetual
peace. After setting out the relevance of the civil order for
the realizafion of our latent, human capacities, Kant
argues that "this consfitufion requires something further,
even if human beings were intelligent enough to discover
it and wise enough to submit voluntarily to its constraints:
A cosmopolitan whole, a system of all states that are in
danger of affecting one another detrimentally.""" A single
state organized according to principles of right but
surrounded by hosfile nafions remains under constant
threat and could never be completely stable. Thus reason
requires a cosmopolitan whole to assure the flourishing
 Crimes Beyond Justice?
of all. As he explains in his "Universal History from a
Cosmopolitan Intent":
The problem of establishing a perfect civil constitution depends
on the problem of law-governed external relations among
nations and cannot be solved unless the latter is. What use is it
to work for a law-governed civil constitution among
individual men, i.e. for the organization of a
commonwealth? The same unsociability that forces men to
do so in turn causes every commonwealth to adopt for
itself, i.e., as a nation in relation to nations, an unrestricted
freedom in its external relations.™
The rule of law in the domesfic sphere is intrinsically
linked with the rule of law in the intemafional sphere. It
is only when history leads human society to the result
that reason requires "a federafion among peoples" that
civil society will have completed its earthly task and
human reason will have completed its empirical efforts.
Kant's nofion of civil society can best be understood as
linking his nofions of individual practical reasorung,
polifical society, and the intemafional order. It is here
that the individual's rational free will and the respect
that it merits are brought into a broader polifical order in
order to achieve its fullest form. It is in this rational civil
society that the purposes of humanity, nature, and history
are realized. Further, civil society stands as a necessary
stage in the formulafion of a rafional world order based
on respect for human rights and individual autonomy.
Without this political order, the innate faculty of human
beings to be rational remains undeveloped, our full
capacity for development remains unfulfilled, and our
ability to demand respect remains likewise stunted.
In the light of Kant's broader views, the significance of
his prescribed punishment for crimes against humanity
becomes clearer. The type of exile that retribufive jusfice
demands must be a total exile from all human society so
that the individual is deprived of any of these
anthropological advantages that humans gain from civil
society. Hence it carmot be an exile with others, but must
be a complete exile from all other rafional beings. Civil
society is not located in any particular place but rather it
is defined by the existence of rational beings under a
lawful system. All human societies exist under such a
system (which is why the state of nature is merely
hypothefical to Kant), and thus a convicted war criminal
must be removed from all humanity. However, they do
not lose their fundamental humanness (i.e., their
rafionality), "For a human being can never be treated
merely as a means to the purposes of another or be put
among the objects of rights to things: his innate per-
sonality protects him from this, even though he can be
condemned to lose his civil personality."^^ Unlike Napo-
Winter/Spring 2005
/ 43
leon, who was able to live among the people of Elbe and
St. Helena and communicate with the outside world, no
such company can be given to the war criminals. To do
so would be to open up another civil society to those
whose acts have alienated themselves from their fellow
human beings. Such criminals would have to be com-
pletely isolated by either permanent solitary confinement
or abandonment on a deserted island. There they would
remain cut off from others, unable to find the vindicafion
through punishment that other criminals achieve by
"paying their dues."
The type of exile that retributive justice
demands must be a total exile from all
human society so that the individual is
deprived of any of these anthropological
advantages that humans gain
from civil society.
Although Kant's recourse to the notion of crimes
against humanity is a product of his reliance on a prin-
ciple of lex talionis as a guide for proper punishment, it is
applicable to other variants of retribufivism, such as
Murphy's or Hegel's, that rely on a quanfitafive measure
(such as "proportionality") to determine deserved
punishment. The reason that Kant turns to the notion of
crimes against humanity is not, strictly speaking, because
their punishments do not fit the lex talionis formula, but
rather because convenfional punishment is "impossible."
For Kant it is impossible because of lex talionis. For other
retribufivists, punishment would (presumably) be im-
possible because there is no available punishment that is
proportionate to mass atrocities. For both lex talionis
retribufivists and their kin who rely on another standard
to determine the criminal's just desert, the concept of a
crime against humanity (and its deserved punishment)
creates the same problem. Such crimes stretch to the
breaking point any retributive metric for determining the
appropriate sort of punishment.
Kant's suggested form of exile may seem strange to our
modem understanding of criminal justice, for which
punishments have usually been limited to either
incarceration or execufion. However, there is no reason
to believe that these are the only normafively acceptable
forms of punishment, parficularly when we are con-
 Aaron Fichtelberg /
fronted with highly unusual sorts of crimes. In her study
of the trial of Adolph Eichmann, Arendt herself catalogs
a list of highly unorthodox punishments that Israelis
proposed for one of the most notorious leaders of the
Holocaust, including forced manual labor helping to
construct the new Jewish state. Other legal systems deploy
criminal punishments other than those suggested by
westem legal systems and even these systems have begun
to experiment with other forms of punishment, such as
shaming. While exile may seem unusual to many, this
alone is not a serious philosophical refutafion.
There is an obvious irony in suggesting that the
appropriate punishment for murderers is execution
whereas those who commit mass atrocifies should be
allowed to live, albeit in an unpleasant state. However,
this irony is not as problemafic as it might first appear to
be. First, the punishment of death is not the worst punish-
ment that can be inflicted on an individual, parficularly
for those types of people that the ICC will most likely
prosecute. Most war criminals accept that death is a
consequence of the choices that they have made and
wholly expect to be executed should their criminal en-
deavors fail. Death is a part of every war criminal's life
and is not looked upon as anything but the inevitable
consequence of failure. Hitler and Goring both opted to
commit suicide rather than face criminal punishment for
their acts (which would have undoubtedly led to the
same result). And Napoleon, when confronted with his
exile in St. Helena, was reported to have bemoaned his
fate thusly:
This is the anguish of death. To injustice and violence
they now add insult and protracted torment. If I were
so hateful to them, why did they not get rid of me? A
few musket balls in my heart or my head would have
done the business, and there would at least have been
some energy in the
IV Conclusion
Whether or not my analysis of Kant's views on purushing
crimes against humanity is correct, I hope to have
preempted one debate in lieu of another. I have sought to
shift the quesfion suggested by Arendt: "Is justice at all
attainable for people like Goring, Milosevic, or Hussein?"
to a different quesfion: "What does jusfice demand that
we do to these people?" One may choose to reject Kant's
retribufivism in favor of another approach, but the point
is that retribufivist theory should be the tool to analyze
the appropriateness of punishment and it can, in
Criminal Justice Ethics
44
To be banished from human civilizafion is a punishment
of a completely different order. War criminals may be
much more comfortable with their own death than with
being exiled from the human society that they fought so
brutally to change.
Further, the choice to prosecute an individual for
crimes against humanity as opposed to murder is a
prosecutorial decision with important polifical and moral
consequences. To be labeled a murderer and to be pun-
ished accordingly entails accepting the responsibilifies
that come from one's membership in civil society (even if
the condemned goes unwillingly). The condemned is
given the opportunity to "make it up" to society for her
crimes. Executed murderers may accept the consequences
of their acts and even be held in a certain esteem if they
"pay the price" for their crimes.^^ This is why Kant argues
that an honorable murderer ought to choose death as
opposed to another punishment. "This comes along with
the nature of a human mind; for the man of honor is
acquainted with something that he values even more
highly than life, namely honor, while the scoundrel
considers it better to live in shame than not to live at
all."^ This honor (not a mere senfiment, presumably, but
much closer to the concept of "respect" for pracfical
reason that was menfioned above) is denied the exile. In
the Apology, Socrates, although falsely convicted of
serious crimes, chose execufion over exile, believing
himself to be duty bound to accept his punishment. The
convicted war criminal does not have this opfion. She is
not able to make amends with civil society through
punishment but must remain unforgiven. Thus the
decision to prosecute an individual for crimes against
humanity as opposed to murder is a choice that leads
only to a lesser punishment for lesser men.
principle, find the proper form of punishment. If the first
part of my argument is correct, retribufivism supplies the
only philosophically acceptable set of tools to answer
the question of just punishment for war criminals.
Of course, these abstract speculafions may carry little
weight among those who formulate intemafional penal
policies. Numerous forces work to shape their views
about intemafional criminal jusfice and their policies
are rooted only partially in serious philosophical
reflecfion. On the other hand, philosophical thought has
 Crimes Beyond Justice? / 45
been a powerful force in the development of intemafional
law in general and international criminal law in
parficular. The ideas that have shaped the ICC and those
Non-governmental Organizafions that have stood over
the codificafion of the Rome treaty, such as Human Rights
Watch and Amnesty Intemafional, have found some of
their primary intellectual inspiration in the works of
Rousseau, Kant, Mill, and Gandhi. The connections
between philosophical ideas and polifical praxis are of
course always complex, and one should not overrate the
influence of practical concerns on the international
community. Nonetheless, if the philosophical ideas
underlying a polifical insfitution are deeply flawed, it
does not bode well for the health and vitality of the
insfitufion itself. In part, this analysis may help shore up
one conceptual concern that could hurt the intemational
criminal jusfice regime.
The internafional realm challenges our beliefs about
the nature of crime, jusfice, and punishment in a dramafic
fashion. Here, the tradifional, common-sense grounds
NOTES
1 Quoted in Gary Bass, Stay the Hand of Vengeance (Princeton, Teson, and John Rawls are certainly valid and worthwhile,
NJ: Princeton University Press, 2000), 13, from "Arendt to
Karl Jaspers, 17 August, 1946," in their Correspondence, 1926- international punishment) would go beyond the scope of this
1969, ed. Lotte Kohler and Hans Saner (New York: Harcourt
Brace, 1992), 54.
2 Quoted in Elizabeth Neuffer, The Key to My Neighbor's
House: Seeking Justice in Bosnia and Rwanda (New York: Picador, (Cambridge, MA: Harvard University Press, 2001).
2000), 259.
3 In this analysis I use the term "war-crimes trials" to refer
exclusively to international tribunals charged with holding
high political and military officials criminally responsible for
their activities in war, including aggression, genocide, ethnic
cleansing, targeting civilians, and other grievous breaches of
the laws of armed conflict. The attempted trial of Kaiser
Wilhelm in 1918, the trials of the Nazi and Japanese leadership
at the end of World War II, and the trial of Slobodan Milosevic Gregor (Cambridge, UK: Cambridge University Press, 1996),
at the Hague, are examples of war-crimes trials, as is the
majority of cases that are slated to be handled by the newly
founded International Criminal Court. In this definition, I
exclude domestic military and civilian criminal trials (despite
the fact that many of them may apply some form of inter-
national criminal law).
4 See Andrew Altman and Christopher Heath Wellman, "A
Defense of International Criminal Law," Ethics 115 (2004): 35-
67, and Larry May, Crimes Against Humanity (Cambridge:
Cambridge University Press, 2005).
5 Altman and Wellman, "A Defense of International Criminal
Law," 36.
6 I should also note that I am not basing my argument on a
much larger moral theory of international law. Normative
legal analyses by theorists such as Allen Buchanan, Fernando
Winter/Spring 2005
for law and pimishment, groimds that we take for granted
in domesfic courts, begin to seem odd and strangely
inappropriate. In the face of the enormous crimes that
intemational courts must confront, on one hand, and the
incredibly complex political environments that war-
crimes trials must confront on the other, the concepts of
criminal jusfice seem to warp. Although there is no doubt
that serious legal, philosophical, and even theological
reflection is sfiU needed for domesfic criminal justice
systems, domestic systems have the benefit of a long
institufional history and an almost universal acceptance.
Scholars may debate different theories of domestic
criminal jusfice, but at the end of the day all will accept
the need for domesfic punishment of some sort. In the
international realm this consensus is lost and the
philosophical quesfions become much more important
and much more necessary. We are only at the beginning
of an intemational criminal justice system, and it is at
this intellectual groundbreaking that scholars have the
most to contribute.
but evaluating them (and their relation to the theory of
essay. See Allen Buchanan, Justice, Legitimacy, and Self-
Determination (Oxford: Oxford University Press, 2004),
Fernando Teson, A Philosophy of Intemational Law (New York:
Westview Publishers, 1998), and John Rawls, The Law of Peoples
7 As Judith Shklar explains an ideology, "Most historically
enduring groups with a recognizable identity and set of
functions have belief systems that inform their practices and
act as guideposts for their members," Legalism: Law, Morals,
and Political Trials (Cambridge, MA: Harvard University Press,
1986), vii.
8 Immanuel Kant, The Metaphysics of Morals, trans. Mary
105.
9 D. J. B. Hawkins, "Punishment and Moral Responsibility,"
Modern Law Review 7, no. 4 (1944): 206.
10 "The law of punishment is a categorical imperative, and
woe to him who crawls through the windings of eudaimonism
in order to discover something that releases the criminal
from punishment or even reduces its amount by the
advantage it promises," Kant, The Metaphysics of Morals, 105.
11 Kant, The Metaphysics of Morals, 105.
12 G. W. F. Hegel, Elements of the Philosophy of Right, trans.
Hugh Nisbet (Cambridge, UK: Cambridge University Press,
1991), 127. This view is shared by K. G. Armstrong who
asserts that, "All that a Retributive theory of penalty-fixing
needs to say to deserve the name is that there should be a
proportion between the severity of the crime and the severity
 Aaron Fichtelberg / 46

of the punishment," "The Retributivist Hits Back," Mind 70
(1968): 486.
13 Arnaud Grellier, "Mladic and Belgrade in the Firing Line,"
International Justice Tribune, October 4, 2004,1.
14 Rachel Bronson, "Think It Over: Indicting Today's Dictators
Is Not a Good Idea," Los Angeles Times, December 3, 1999.
15 John Hospers, "Rule Utilitarianism," in Moral Philosophy:
A Reader, ed. L. Pojman (Indianapolis: Hackett Press, 1988),
157.
16 Article 1 of the Rome Statute asserts that the Court will
"have the power to exercise its jurisdiction over persons for
the most serious crimes of international concern," Rome
Statute of the International Criminal Court, July 17, 1998,
U.N. Doc A/CONF. 183/9.
17 See Article 17 of the ICC statute, which determines that a
case is inadmissible where "the case is being investigated or
prosecuted by a state which has jurisdiction over it, unless the
State is unwilling or unable genuinely to carry out the
investigation or prosecution." Rome Statute of the
Intemational Criminal Court, July 17, 1998, U.N. Doc A/
CONF. 183/9.
18 Michael P. Scharf, "Justice vs. Peace," in The United States
and the International Criminal Court: National Security and
International Criminal Law, ed. S. Sewell and C. Kaysen
(Lanham: Rowman and Littlefield, 2000), 189.
19 Shklar, Legalism, 2.
20 Martha Minow, Between Vengeance and Forgiveness
(Boston: Beacon Press, 1999), 51.
21 See for example, George Kerinan who argued that "the
legalistic approach to world affairs, rooted as it unquestionably 42 Kant, Grounding, 15.
is in a desire to do away with war and violence, makes
violence more enduring, more terrible, and more destructive
to political stability than did the older motives of national
interest," "Diplomacy in the Modem World," in International
Rules, ed. Robert D. Vander Lugt, Robert J. Beck, and Anthony
C. Arend (Oxford: Oxford University Press, 1996), 105.
22 Mark Osiel, Mass Atrocity, Collective Memory, and the Law 46 Kant, "Idea for a Universal History with a Cosmopolitan
(New Brunswick: Transaction Publishers, 2000), 22-23.
23 Christopher Hedges, War is a Force that Gives Us Meaning 47 Kant, "Idea for a Universal History with a Cosmopolitan
(New York: Anchor Books, 2002), 43-61.
24 Prosecutor v. Dusko Tadic, ICTY, IT-94-1-A, a case that
began in 1995 and was determined in 1997, though appeals
continued to 2000.
25 Mark Drumbl, "Sclerosis: Retributive Justice and the
Rwandan Genocide," Punishment and Society 2, no. 3 (2000):
294.
26 Carrie Gustafson, "International Criminal Courts: Some
Dissident Views on the Continuation of War by Penal Means,"
Houston Journal of International Law 21 (1998). Quoted in
Drumbl, "Sclerosis: Retributive Justice and the Rwandan
Genocide," 295.
27 Immanuel Kant, Grounding for the Metaphysics of Morals, death penalty. Although at present the ICC is not allowed to
trans. James Ellington (Indianapolis: Hackett Publishers, 1993), impose execution, the demands of (retributive) justice would
30.
28 Teson, A Philosophy of International Law.
29 Jeffrie Murphy, Retribution, Justice, and Therapy (Dordrecht:
D. Reidel, 1979), 79.
30 Bass, Stay the Hand of Vengeance, 185, from CAB 66/25,
Eden memorandum, W.P. (42) 264, 22 June 1942.
31 "Every murderer—anyone who commits murder, orders
it, or is an accomplice in it—must suffer death; this is what
justice, as the idea of judicial authority, wills in accordance
with universal laws that are grounded a priori," Kant, The
Metaphysics of Morals, 107.
32 "Whoever steals makes the property of everyone else
insecure and therefore deprives himself (by the principle of
retribution) of security in any possible property," Kant, The
Metaphysics of Morals, 106.
33 Kant, The Metaphysics of Morals, 130.
34 Kant, The Metaphysics of Morals, 130.
35 "One who commits a sin is punished through it and in the
same way," [editor's trans.]
36 Kant, The Metaphysics of Morals, 130.
37 Although it is important to note that nowhere does Kant
present an argument as to why pederasts and rapists deserve
castration, or how these punishments fit the principle of lex
talionis.
38 It is important to note that pederasty, rape, and bestiality
are only "examples" of a unique type of crime. Kant's list is
not meant to be exhaustive.
39 Kant, Grounding, 23
40 Kant, Grounding, 30.
41 Kant, Grounding, 30.
43 Kant, Grounding, 36.
44 Kant, Grounding, 36.
45 Immanuel Kant, "Idea for a Universal History with a
Cosmopolitan Intent," in Perpetual Peace and Other Essays, ed.
Ted Humphrey (Indianpolis: Hackett Publishers, 1983).
Intent," 21.
Intent," 21.
48 Immanuel Kant, Critique of Judgment, trans. Werner Pluhar
(Indianapolis: Hackett Publishers, 1987), 320.
49 Kant, Critique of Judgment, 390.
50 Kant, "Idea for a Universal History with a Cosmopolitan
Intent," 34.
51 Kant, The Metaphysics of Morals, 106.
52 As recounted by Comte de Las Cases, reprinted in James
Harvey Robinson, Readings in European History (New York:
Girm and Company, 1906), 370.
53 I should note here that I am not prejudging the issue of
whether or not the ICC should be allowed to impose the
require changing this rule.
54 Kant, The Metaphysics of Morals, 107.

Criminal Justice Ethics