It is widely acknowledged that human rights law and international criminal law share core normative features. Yet, the literature has not yet reconstructed this underlying basis in a systematic way. In this contribution, I lay down the basis of such an account. I first identify a similar tension between a “moral” and a “political” approach to the normative foundations of those norms and to the legitimate role of international courts and tribunals adjudicating those norms. With a view to bring the (...) debate forward, I then turn to the practices of HRL and international criminal law to examine which of those approaches best illuminates some salient aspects of the adjudication of ICs. Finally, I argue that the political approach best explains the practice. While each preserves a distinct role, HRL and ICL both establish the basic conditions for the primary subject of international law, namely the state, to legitimately govern its own subjects constructed as free and equal moral agents. (shrink)

In this article, I ask whether the state, as opposed to its individual members, can intelligibly and legitimately be criminalized, with a focus on the possibility of its domestic criminalization. I proceed by identifying what I take to be the core objections to such criminalization, and then investigate ways in which they can be challenged. First, I address the claim that the state is not a kind of entity that can intelligibly perpetrate domestic criminal wrongs. I argue against it by (...) building upon an account of the modern state as a moral agent proper, capable of both culpable moral and legal wrongdoing. I then consider objections to the intelligibility and legitimacy of subjecting states to domestic criminal processes, which primarily find their source in the assumption that such subjection would necessarily involve the state prosecuting, judging, and punishing itself. I argue that whether this (questionable) assumption is sound or not, it does not create the kinds of unsolvable quandaries its exponents think it does. I then move on to reject the distinct, yet related, objection that, at least in aspiring liberal jurisdictions, treating the state as a criminal objectionably involves extending to it various substantive and procedural guarantees that, given its nature and raison d’être, it should not have. Finally, I discuss three central objections to punishing the state. First, that organizations like states do not have the phenomenal consciousness required to suffer punishment. Second, that the constant possibility of dispersion of state punishment amongst individual members stands in the way of its justification. Lastly, that whatever justification there may be for making things harder for the state in response to its culpable wrongdoing, such treatment need not be understood as punishment. While partially conceding the strength of these objections, I strive to loosen their grip in ways that show that justified punishment of the state, meaningfully understood as such, remains a distinct possibility. I conclude by contrasting supposed alternatives to the criminalization of states, and by contending that my analysis leaves us with enough to keep the possibility of state criminalization on the table as a justifiable response to state wrongdoing. (shrink)

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity (...) are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability. (shrink)

The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for acts reflect corrective justice rather than welfarist norms. The literature either is silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful but risky acts. This is (...) no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives. (shrink)

This study reviews and classifies the most common uses of the terms “enemy” and “enmity” within the context of traditional philosophical discourse. In order to contribute to a structured understanding of these concepts, we proceed in two steps. We first explore the auxiliary uses of the terms, which we distinguish from each other according to their axiological connotations. In a second part, we review the technical uses of the concepts known to philosophy of law. Here, we distinguish between two different (...) approaches to the concept, one of which defines it through qualitative criteria, and a second approach that uses the term as a quantifier. (shrink)

La plupart des auteur-es ayant abordé le problème de l'extension du cognitif, tel qu'il a émergé des débats autour de la thèse de l'esprit étendu, ont supposé que cette extension devait prendre la forme d'un espace régulier, qui peut être ceint par des frontières. Cependant, la littérature en question ne traite pas explicitement de cette supposition, de sorte que, malgré son influence, il n'y a pas d'évaluation de sa véracité ou de sa légitimité. Dans ce mémoire, cette hypothèse est remise (...) en question, et nous prenons sa contrepartie pour hypothèse de recherche, à savoir que, malgré l'assurance des auteur-es qui l'épousent, il est tout à fait légitime d'explorer des propositions de caractérisation du cognitif qui aboutissent à d'autres formes d'extension. Pour démontrer notre hypothèse (H1), nous posons deux autres hypothèses : (H2) les auteur-es qui épousent la supposition selon laquelle l'esprit doit s'étendre sur un espace ceint par des frontières le font sur la base de l'intuition individualiste, et (H3) l'intuition individualiste, malgré certaines apparences, ne permet pas de justifier cette supposition. Nous démontrons H2 à l'aide d'une analyse de texte faite sur le corpus des auteur-es ayant abordé la question de l'extension du cognitif dans la foulée des débats sur l'esprit étendu, et nous montrons que la littérature en sciences cognitives et en philosophie de l'esprit nous donne des raisons de croire que H3 est vraie. Ensemble, H2 et H3 justifient H1. (shrink)