A Cosmopolitan Perspective on Global Criminal Justice

Abstract

The paper tries to identify some key principles that distinguish cosmopolitanism from other approaches in terms of individual responsibility in international affairs. Many of these principles, and notably the idea that a political community is not responsible for the wrongdoings of its rulers, have been absorbed by international law and practice. Since the end of WWII these principles have been codified in important documents, such as the Universal Declaration of Human Rights and the Nuremberg Principles. With the end of the Cold War, a further crucial development has emerged and the international community has started to be more active in carrying out, through a variety of national and international courts, investigations against egregious criminals. But we are still far from proper cosmopolitan criminal accountability. International hearings have put at the bar the weak rather than the strong players of world politics. This confirms the realist prediction that the legal infrastructure is likely to reinforce the actual distribution of power rather than to counter-balance it. Moreover, the disproportion between the scale of international crimes on the one hand and the amount of individuals at the bar on the other hand undermines the legitimacy of individual criminal justice. The paper explores possible evolution of to the current judicial system for international crimes following basic cosmopolitan principles. 1) The International Criminal Court should fully implement its mandate and thus also be able to cover the crime that it is more likely to be committed by strong world political players, that is, aggression. 2) The noble tradition of opinion tribunals, inaugurated by Bertrand Russell, Jean-Paul Sartre and Lelio Basso with the Tribunal for war crimes in Vietnam, should become a core aspect of a cosmopolitan criminal justice system since it is more likely to target the powerful and the winners rather than the powerless and the losers. Even if opinion tribunals are not in the position to inflict punishment, they can vindicate the reasons of the weak players. 3) While the cosmopolitan idea that key culprits should be held criminally responsible still holds, there is the risking of exonerating collective responsibility through a few scapegoats. Some fresh forms of addressing major crimes also through collective awareness need to be explored. 4) Finally, the potential of truth and reconciliation commissions, on the model pioneered by South Africa, should be further developed as a method to integrate individual criminal responsibility.