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Abstract Kant speaks in his political works of a supreme judiciary body to legislate over the cosmopolitan society humanity is approaching. The past two decades bore witness to the birth of the International Criminal Court, brought into existence by the Rome Statute of 1998. Since then the ICC has been acting (or trying) to prosecute war crimes committed by individuals or parties across the globe. Some critical examination with a Kantian flavor is necessary to see that this ICC is not (nor can it ever be) the supreme judiciary body of our cosmopolitan-esque society. We will delve into two very lethal examples of how the ICC violated the autonomy of two different nations, thus putting all other nations autonomy at risk. The very structure and procedures that the ICC employs brings some less than savory situations, both hypothetical and real, that would leave Kant snarling with outrage.

Kant and the (Disappointing) International Criminal Court

1. Introduction Since the recent establishment of the International Criminal Court (ICC) as an entity to administer justice for occurrences of four particular crimes it has become a topic of political and philosophical interest. I will offer a Kantian examination of the ICC. Kantian thought will provide an interesting and rigorous method through which to approach the ICC in the modern world because the arguments and ideas laid out by Kant are constructed in a logical manner and, in regards to his political philosophy, have a particular emphasis on the role of a supreme judicial body in a cosmopolitan society as well as focusing on the autonomy of individuals and nations. This paper will look at various components of the ICC, including the Rome Statute, the founding document of the ICC, the courts jurisdiction, the role of the Prosecutor in the ICC, and finally a response to common argument that is likely to arise in opposition to my arguments.

2. Definitions Before I present the main ideas and arguments it is essential that some terms be defined that will be either common or important later on. The International Criminal Court is the body of justice created by the 1998 Rome Statute that became effective in 2002. According to Part 2 Article 5 of the Rome Statute, The jurisdiction of the Court shall be limited to the most serious

crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; (d) The crime of aggression. [3] The specific crimes, genocide, crimes against humanity, war crimes, and crimes of aggression, are all defined as outlined in the Rome Statute, Part 2 Articles 5 through 9. Unless otherwise stated the Statute and the Court refer to the Rome Statute and the ICC respectively. [5] It is also of extreme importance that the following assumption is made; the world is evolving in the manner consistent with Kants proposal towards a cosmopolitan society. This assumption is natural and logical given that certain moral standards are becoming common throughout the world, the belief that we are all humans, and that we are united in our humanity. Democracy and its accompanying principles, the Universal Declaration of Human Rights I will contend is a prime example of this claim, are very often the goal and ideal of the developed and developing nations of the world. While I recognize that Kant dislikes democracy, the notion of cosmopolitanism is that of a universal set of morals; even if Kant may not like where we are heading we are still becoming more cosmopolitan every day. In other words, we assume that if we allow time to go on indefinitely our global community will get nearer and nearer towards a purely cosmopolitan world, likely one which favors democratic principles. This assumption is necessary so that we may spend our time looking into the ICC itself instead of devoting a good deal of time to proving that we are in fact becoming more cosmopolitan. That is another topic for another time.

3. History of the International Criminal Court The earliest attempts to establish a permanent international court began in 1872 with Gustav Moynier, who sought justice for the crimes committed during the Franco-Prussian War by means of a permanent international entity. Another demand for an international court came from the drafters of the Treaty of Versailles in 1919 to try the Germans who committed war crimes. An additional call was made after the conclusion of World War II when tribunals were established in Tokyo and Nuremberg to try the Axis war criminals. Attempts were started in the 1950s to draft a statute that would establish an international body of justice, however the Cold War halted efforts until 1989 when Trinidad and Tobago brought back motions to establish a court in response to drug trafficking. The necessity of an international court became apparent

after the UN Security Council established tribunals in response to conflicts in BosniaHerzegovina, Croatia, and Rwanda in the 1990s to distribute justice for the many war crimes, crimes against humanity, and acts of genocide. From 1994 to 1998 a statute was drafted and eventually ratified by 120 nations, with 21 abstaining, and 7 voting against the Rome Statute (the United States and China were two such nations). The treaty entered into effect on July 1, 2002, and thus the International Criminal Court was brought officially into this world as an authoritative judicial system. [1]

4. Examination of the International Criminal Court 4.1 Introduction The following section will analyze various fundamental components of the ICC. The flavour of analysis will be Kantian, with most arguments deriving from Kants Political Writings translated by Hans Reiss in the 1970 edition from Cambridge University Press. The particular works drawn from are: Idea for A Universal History with a Cosmopolitan Purpose, On the Common Saying: This May be True in Theory, but it Does not Apply in Practice, and Perpetual Peace: a Philosophical Sketch; it is also worth mentioning that bits will be drawn from Groundwork for the Metaphysics of Morals. In the course of the following paragraphs I hope to provide some insight into what Kant would have felt on the matter of the ICC and draw a conclusion that, will ultimately, not be in its favor. The logical place to begin is by examining the several key components of the ICC outlined in the Rome Statute that Kant would have had contentions with.

4.2 International Acceptance We begin by looking to the status of the Court as viewed from an international perspective. As stated earlier 120 nations ratified the Rome Statute, however 21 abstained and 7 voted against the Statute. [5] The fact that the ICC is not recognized by all of the existing nations brings into question the validity of the Court. While the Court was brought about through democratic means at a General Assembly of the United Nations in 1998, Kant distinctly voices distaste for democracy. For example, from Perpetual Peace, Democracy is necessarily a despotism, because it establishes an executive power through which all the citizens may make decisions about the single individual without his consent, so that decisions are made by all the

people and yet not by all the people. [2] Kant dislikes democracy because it is, at its core, despotism in that the majority is given power to violate the autonomy of the minority. Autonomy is important to Kant as it is our natural faculty that comes with reason and is something that in order for us to have any chance in acting with moral laws must be able to exercise in full. It is then easy to see where Kant dislikes democracy; it ignores the autonomy of a minority party in favor of the majoritys will. It is important to note that because Kant believes autonomous beings will have a similar moral framework that anything other than unanimity is impossible, we see why democracy falls short of his lofty expectations. This provides a solid component from which we can begin to conclude that Kant would not favour the ICC. There is an obvious criterion, one could claim, that for Kant to approve of the ICC, all of the nations would have to unanimously agree with its establishment, which is not the case. However, the Court exercises jurisdiction solely in those nations which have signed on and ratified the Rome Statute. As such, those who do not consent are not affected and their autonomy as independent nations is preserved. Conversely, the ICC may investigate a situation if the United Nations Security Council refers it to the Prosecutor. This provides the potential for nations that have not ratified the Rome Statute to exercise their authority in a nation that does not recognize them; clearly this provides a means through which a nations autonomy is being violated. Due to the lack of unanimous international support for the Court arising from the proceedings of a democratic system, Kant would very likely not approve of the court, likely considering it a result of a despotic system.

4.3 Jurisdiction of the Court Looking into the international status of the Court brings into question the jurisdiction of the ICC. While normally the Court cannot interfere in a nation that has not ratified the Rome Statute, the UN Security Council can refer situations in nations that are not member states to the Court. [5] There have been two instances of the Security Council requesting investigations into situations in non-member nations; those being the genocide in Darfur, Sudan and the actions of the Gaddafi regime in Libya, neither of the nations where these events transpired ratified the Rome Statute. The Prosecutor has also initiated two investigations proprio motu in Kenya and Cte dIvoire. While the Security Council may make recommendations it is up to the Prosecutor to begin an investigation proprio motu. (The specifics of the Prosecutor will be examined later on.) In any case, investigations that yielded several indictments have been initiated and are

currently still being conducted in these countries. [5] Security Council Resolution 1593 (passing with 11 supporting, 4 abstaining, and 0 opposing) referred the situation in Darfur to the ICC for the Prosecutor to evaluate the opening of an investigation. An investigation was formally opened June 2005. [7] Sudan is one of the countries that refuse to recognize the legitimacy and jurisdiction of the International Criminal Court. This is clear not only because it voted against the Statute, but also because when an investigation was opened, by the Sudanese government stating, The International Criminal Court has no place in this crisis at all. Sudan refused to cooperate with the ICC claiming that the Court has not jurisdiction of Sudanese citizens. However, the Pre Trial Chamber 1 plead to the UN Security Council to force Sudan into cooperating in compliance with the binding text of Resolution 1593.[4] All evidence indicates that Sudan does not want the Court involved in their happenings. By an investigation being opened and the indictment of seven individuals, the Court extended its jurisdiction to encompass another nations affairs against that nations will, a clear and direct violation of its autonomy as it no longer has a say in what is transpiring. The process was similar in Libya. Resolution 1970 (passing with 15 supporting, 0 abstaining, and 0 opposing) referred the case to the ICC. [8] While there was unanimity in the passing of Resolution 1970, the Court was still extending its influence where it was not welcome, again violating the autonomy of an independent nation. The key problem here is that Libya wanted to seek justice itself and domestically prosecute the criminals. However, the ICC was not happy with this and demanded, again invoking the resolution that initiated the investigation, that Libya turn the criminals over to them. This is another example of the ICC using the power of the UN Security Council in an attempt to coerce nations into acting in accordance with their own agenda. In light of two instances of a direct violation of the autonomy of independent nations, we can conclude that Kant would most definitely look with disdain upon the Court. Additionally, the fifth subsection of the first section of Perpetual Peace argues that, the interference of external powers would be a violation of the rights of an independent people which is merely struggling with its internal ills. Such interference would be an active offence and would make the autonomy of all other states insecure. [2] From Kants writings it is very obvious and logically follows that the ICC has exhibited actions that violate the autonomy of two nations which entails that the autonomy of other nations is at risk. This crystalizes the notion that Kant would not hold a

favorable position on the ICC, but rather, a position quite the opposite.

4.4 The Prosecutor At the root of all ICC investigations is the Office of the Prosecutor. Under article 42 of the Rome Statute, the Office of the Prosecutor is to act independently and may not act on behalf of external sources. The three circumstances defined in the Rome Statute in which the Prosecutor may initiate an investigation are: if the situation is referred by a member nation, the situation is referred by the UN Security Council, and if the Pre-Trial Chamber permits the start of an investigation based on information gleaned from other sources. As mentioned earlier the Prosecutor may also open an investigation proprio motu, which gives them a very large amount of freedom in creating investigations. [3] The three criteria outlined above all provide means for an investigation to be opened into a nation which is not a member of the ICC; however, only one of the circumstances can result in forced interference. Consider the first circumstance, referral by a member nation. If nation A is not a member of the ICC and is experiencing internal conflict in which crimes that would fall under the jurisdiction of the court are being committed, it is possible for another nation that is a member, call this nation B, to refer the situation which could yield an investigation. Nation A distinctly refuses to acknowledge the authority of the Court and, by extension of its refusal, does not want the Court to interfere with its internal happenings. Nation B notices crimes occurring in nation As borders and refers the situation to the Prosecutor. Assume now that the Prosecutor opens an investigation into nation A. While the Rome Statute says that the Prosecutor may urge nation A to cooperate with the investigation, it has no power to force cooperation and the investigation will proceed to a stalemate. Consider now that the UN Security Council is the entity to refer the situation to the Prosecutor, or the second circumstance. Permitting all of the same assumptions we made in the first circumstance a different outcome may potentially arise. The UN Security Council issues resolutions that refer the situation to the Prosecutor and the ICC while simultaneously requiring cooperation of nation A, provided it is a member of the UN. Even though nation A does not acknowledge the authority of the court, it is legally bound by being a member of the UN to submit, against its will, to the requests of the Prosecutor. This is a direct violation of nation As autonomy as well as a direct violation of Section 1, Subsection 5 of Perpetual Peace (no state shall forcibly interfere in the constitution of another state). In the

second circumstance, then, there are two points where Kant would object to the powers of the ICC and the Prosecutor. The third and final circumstance permitting ICC investigations is obviously going to yield the same result as the first; the only difference is that nation B has no involvement. We see that the Prosecutor has authority, ascribed to him by not all nations, to override a nations autonomy to begin an investigation. Thus, in a single circumstance there is the potential for violations of autonomy; we can conclude that a more precise system that does not have that potential would be required before Kant would even consider the system; however, as it stands Kant would not support the ICC from this perspective.

4.5 Answers to a Common Argument An argument that could be used to leverage the claim that Kant would support the ICC is the fifth proposition from Idea for a Universal History with a Cosmopolitan Purpose, The highest task which nature has set for mankind must therefore be that of establishing a society in which freedom under external laws would be combined to the greatest possible extent with irresistible force, in other words of establishing a perfectly just civil constitution. Man, who is otherwise so enamored with unrestrained freedom, is forced to enter this state of restriction by sheer necessity. We must examine what Kant means by sheer necessity. In the sentences that follow the excerpt above, he utilizes a metaphor of trees growing in a forest; importantly, they must grow tall and straight in order to prevent being suffocated by the neighboring trees. The United States and China are two trees that exist in a most interesting state, as they are two of the tallest (tallest in the sense of hegemonic and economic power) trees in the global forest by far. Additionally, the United States is a critical component of UN Peacekeeping, providing over 27 percent of the UN Peacekeeping budget in 2012 and is projected to increase the percentage over the next two years; in 2010 alone the United States made contributions of around $6.2 billion to the Peacekeeping budget and humanitarian efforts where Peacekeeping forces are active. [9] It is easy to see that the tree symbolizing the United States has roots that have grown around the roots of other trees, able to cut off the other trees access to nutrients necessary to survive. China is an additional, albeit unnecessary, example of a nation that is not remotely threatened by its refusal to join the ICC. China has in this past decade risen rapidly through the ranks to become a strong nation, and it is not showing any signs of slowing down anytime soon. There have been no situations that have arisen in relation to the ICC that have

given China a reason to be worried about being crowded out by other trees in the forest. As such, it is safe to conclude that China is not threatened by its lack of membership to the ICC. Furthermore, if we examine the argument of necessity that Kant uses, it can be observed that in the general situation the Court fails to meet this standard. As Kant argues, men are forced to submit to the judicial body of a cosmopolitan society out of necessity. [2] Let us assume that all nations act as independent and rational entities. With these assumptions in place all nations possess the same qualities and are fundamentally equivalent. As such if a single nation ever found a need for an international court, all nations would come together to form this court. Because the necessity has arisen for one and because all are similar the need would be felt by all, and all nations would have the same vision for what the court should be. Thus Kants argument would be fulfilled, as logic dictates that all nations would ratify such a court. If a nation X is a nation that is not rational, this would exclude it from the set of all other nations; as such, if the necessity for an international court arose for one of the groups then it would not necessarily extend to the other group. Additionally, if there were a necessity for both groups to seek the establishment of an international court the chances are that the reasons, ends, and means of an international judicial body would be different for both groups. There is also the possibility that nation X would simply refuse to recognize the court established by the other nations for some reason (ideology, desired ends, methodology, etc). Applying the aforementioned to the current global situation it can be observed that there are indeed irrational nations that inhibit a universalizable court. North Korea and Iran are two nations that are not members of the ICC, and both could be considered irrational. A rational nation is one that acts in accordance with notions of humanity as an objective end, as outlined in Groundwork for the Metaphysics of Morals, a being that acts purely out of self interest is not acting rationally nor in accordance with objective moral law. [10] North Koreas recent threat of using nuclear weapons and 2003 withdrawal from the Nuclear Non-Proliferation Treaty are two good indicators that humanity is not its end, but rather the subjective end, perhaps, of self-preservation. Iran acts in a similar manner with continued nuclear testing despite heavy sanctions from the global community. Neither nation would be considered a rational one, and based upon the established governments and demographic ideologies an international court established by these two nations would be drastically different from one established by all other nations, namely those that would be considered rational.

The fact that not one, but two nations stand in defiance of the criterion of sheer necessity defined as prosperity or ability to survive; coupled with the presence of two irrational nations that do not have a necessity to join the current international court are strong indicators that the ICC is not the entity of justice that Kant envisioned to accompany a cosmopolitan society. Two examples, one also would have been plenty, are more than enough to prove that a general rule cannot be established and, as such, the ICC fails very much so when held up to this level of rigor that Kant, and mathematics, require.

5. Conclusion We have looked into specifics of Rome Statute that erect red flags for being a candidate for Kants supreme judicial body of a cosmopolitan society. The first arose as a result of a lack of unanimous international ratification of the Rome Statute from its establishment through the present day. The second flag came about from the jurisdiction of the ICC being able to violate the autonomy of independent nations in an unjustified extension of its influence. The next flag was planted by the Prosecutor of the Court and the powers vested in him by the Rome Statute, again giving them the ability to suppress another nations autonomy in its internal affairs. The final flags come from the criterion of sheer necessity established by Kant, there exist many real examples, namely China, the United States, Germany, the United Kingdom, and almost every other country, of how the ICC is not necessary for other nations to exist which directly contradicts what a true Kantian international court would be. Thus, I conclude that the International Criminal Court as it exists today is not only a court Kant would disapprove of to function as the supreme judicial body but also one he would be very disgusted with.

Works Cited 1. "History of the ICC." Coalition for the International Criminal Court. CICC, n.d. Web. 28 Apr. 2013. <http://www.iccnow.org/?mod=icchistory>. 2. Kant, Immanuel, and Hans Siegbert. Reiss. Kant's Political Writings: Edited, with an Introduction and Notes, by Hans Reiss. London: C.U.P., 1971. Print. 3. "Refworld | Rome Statute of the International Criminal Court (last Amended 2010)." Refworld | Rome Statute of the International Criminal Court (last Amended 2010). International Criminal Court, n.d. Web. 23 Apr. 2013. <http://www.refworld.org/cgibin/texis/vtx/rwmain?docid=3ae6b3a84>. 4. Stemple, Hillary. "JURIST - Paper Chase: ICC Prosecutor Seeks UN Support for Arrest of Suspected Sudan War Criminals." JURIST - Paper Chase: ICC Prosecutor Seeks UN Support for Arrest of Suspected Sudan War Criminals. University of Pittsburg School of Law, 12 June 2010. Web. 28 Apr. 2013. <http://jurist.org/paperchase/2010/06/iccprosecutor-seeks-un-support-for-arrest-of-suspected-sudan-war-criminals.php>. 5. "Understanding the International Criminal Court." International Criminal Court. International Criminal Court, n.d. Web. 28 Apr. 2013. <http://www.icccpi.int/iccdocs/PIDS/publications/UICCEng.pdf>. 6. United Nations General Assembly. "United Nations Official Document." UN News Center. UN, 3 Aug. 2012. Web. 29 Apr. 2013. <http://www.un.org/ga/search/view_doc.asp?symbol=A/67/224>. 7. United Nations Security Council. "Resolution 1593." International Criminal Court. International Criminal Court, 31 Mar. 2005. Web. 29 Apr. 2013. <http://www.icccpi.int/NR/rdonlyres/85FEBD1A-29F8-4EC4-9566-

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48EDF55CC587/283244/N0529273.pdf>. 8. United Nations Security Council. "Resolution 1970." International Criminal Court. International Criminal Court, 26 Feb. 2011. Web. 28 Apr. 2013. <http://www.icccpi.int/NR/rdonlyres/081A9013-B03D-4859-9D61-5D0B0F2F5EFA/0/1970Eng.pdf>. 9. "The United States in UN Peacekeeping: Strengthening UN Peacekeeping and Conflict Prevention Efforts." U.S. Department of State. U.S. Department of State, 23 Sept. 2010. Web. 29 Apr. 2013. <http://www.state.gov/r/pa/prs/ps/2010/09/147828.htm>. 10. Johnson, Robert. "Kant's Moral Philosophy." (Stanford Encyclopedia of Philosophy). Stanford University, Summer 2012. Web. 30 Apr. 2013. <http://plato.stanford.edu/entries/kant-moral/>. 11. "Libya: A Rebuff to the ICC | Human Rights Watch." Libya: A Rebuff to the ICC | Human Rights Watch. Human Rights Watch, 19 Sept. 2013. Web. 29 Jan. 2014. <http://www.hrw.org/news/2013/09/19/libya-rebuff-icc>.

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