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UNIVERSALITY of PUNISHMENT Horizons (In Semiotica, 2013); Create to Rule Unità del sapere giuridico 14 Quaderni di scienze penalistiche e filosofico-giuridiche ANTONIO INCAMPO is Full Professor of Dipartimento di Giurisprudenza We only have to consider the ius commune Philosophy of Law at the University of Bari Università degli Studi di Bari “Aldo Moro” of tenth-century continental Europe (or “Aldo Moro.” In the past, he was Director of the ius gentium of the Romans) to realise the Department of Criminal Law, Criminal that the concept of law has historically Procedural Law and Philosophy of Law at the been undergoing an irreversible process University of Bari, and President of the Degree of maturation, particularly intense in the Courses of the Second Faculty of Law at the twentieth century, towards rational universality. same University. He is author of numerous One central goal of contemporary law, essays on philosophy and semiotics of legal however, which is of paramount importance language. Among his major works are: Sul to the studies in this volume, is that the law Fondamento della Validità Deontica. Identità should not only be supra-national, but also Non-Contraddizione (Bari, 1996), Atto e universally enforceable. Every nation has Funzione. Sistema di Deontica Materiale A obligations to other nations, inevitably with Priori (Bari, 1997), Validità Funzionale di Norme the rise of the modern state, which are not (Bari, 2001), Filosofia del Dovere Giuridico restricted to the defence of national borders, (Bari, 2003, 20122), Ricerche di Filosofia del and which could potentially involve the Diritto, with A.G. Conte, P. Di Lucia, G. Lorini, W. use of force in defence of the common ed. by A. Incampo and W. Zełaniec Zełaniec (Turin, 2007), Metafisica del Processo. good irrespective of sovereignty or national Idee per una Critica della Ragione Giuridica borders. In this way, the law is increasingly (Bari, 2010), Verità e Processo Penale, with “Let us be sacrificers, but not butchers, Caius.” becoming a true “nómos of the Earth.” V. Garofoli (Milan, 2012), Herbert Schambeck. What are the issues? Paradoxically, while Sein und Sollen: Grundfragen der Philosophie the law is supra-national in its intent and des Rechtes und des Staates, with H.F. Köck, William Shakespeare, Julius Caesar, II, 1 significance, that is not how penal courts C. Hermida del Llano, A. Szmyt (Berlin, 2014). around the world work. Rights may be universal, but the means and methods of punishment are not. While there is a general international consensus concerning the WOJCIECH ZEŁANIEC teaches philosophy at unlawfulness of certain acts – for example, the University of Gdansk´ (Poland). In the past, genocide or war crimes – the diverse he has carried out research at the International justice systems do not deliver a coherent Academy of Philosophy in the Principality of response when it comes to punishment. Liechtenstein, SUNY in Buffalo NY and the UNIVERSALITY The studies in this volume all arrive at the Julius Maximilian University in Würzburg, same basic conclusion: progress in the Germany. He has also taught at Czestochowa˛ universalization of law presupposes penal (Poland), Würzburg, Zielona Góra (Poland), OF PUNISHMENT justice based on the fundamental right to Istanbul, Santiago de Chile and in Cagliari. human dignity – it is unthinkable to have His most recent work includes: On a Value edited by Antonio Incampo and Wojciech Zełaniec laws based on human rights enforced of Eccentricity (in Rivista di Estetica, 2014); by a totally inhumane penal system. An Example of the “Synthetic A Priori:” On How It Helps Us to Widen Our Philosophical UNIVERSALITY OF PUNISHMENT Horizons (in Semiotica, 2013); Create to Rule. Dust jacket: Studies on Constitutive Rules (Milan, 2013); Herbert Boeckl, Apokaliptische Reiter ,1952–1960 Truth-Value and Self-Reference. Against the CACUCCI EDITORE (Engelkapelle, Abtei Seckau) Spectre of the ‘Revenge Liar’ (Milan, 2013). € 35,00 BARI Unità del sapere giuridico Quaderni di scienze penalistiche e filosofico-giuridiche Collana diretta da Antonio Incampo e Vito Mormando Comitato scientifico Angiola Filipponio, Heribert Franz Köck, Mariano Menna, Francesco Palazzo, Carlo Enrico Paliero, Luigi Pannarale, Otto Pfersmann, Aldo Regina, Adolfo Scalfati, Herbert Schambeck, Giorgio Spangher, Gunther Teubner, Wojciech Żełaniec. Comitato di redazione Marilena Colamussi, Enzo Dell’Andro, Francesco Di Renzo, Massimo Leccese, Giuseppe Losappio, Vincenzo Bruno Muscatiello, Lucia Iandolo Pisanelli, Maria Antonella Pasculli, Porzia Teresa Persio, Guglielmo Siniscalchi, Maurizio Sozio, Nicola Triggiani, Miranda Zerlotin. I volumi inseriti nella collana, ritenuti preliminarmente ammissibili dai Direttori con l’ausilio del Comitato scientifico, sono sottoposti alla revisione tra pari [peer review] secondo i regolamenti attualmente vigenti per le pubblicazioni scientifiche. Universality of Punishment edited by Antonio Incampo and Wojciech Żełaniec Cacucci Editore Bari PROPRIETÀ LETTERARIA RISERVATA © 2015 Cacucci Editore - Bari Via Nicolai, 39 - 70122 Bari - Tel. 080/5214220 http://www.cacucci.it e-mail:[email protected] Ai sensi della legge sul diritto d’autore e del codice civile è vietata la riproduzione di questo libro o di parte di esso con qualsiasi mezzo, elet- tronico, meccanico, per mezzo di fotocopie, microfilm, registrazioni o altro. Stampato in Italia Printed in Italy Puglia Grafica Sud - Bari Contents 5 Contents Introduction p. 7 I. WHAT PUNISHMENT? Salvatore Amato, Criminal Punishment in Crisis » 15 Matthew H. Kramer, Retributivism in the Spirit of Finnis » 29 Giuseppe Lorini, Revenge as Universal Legal Structure vs. Revenge as Individual Legal Institution » 61 Marek Piechowiak, Plato’s Conception of Punitive Justice » 73 Gregorio Robles, The Communication Theory of Law and the Juridical Coercion » 97 Maurizio Sozio, What Punishment in a “Brave Neuro World”? » 107 Leo Zaibert, Justifying Incarceration » 135 Wojciech Żełaniec, Now You Know: The Educative Purpose of Punishment » 155 II. UNIVERSAL JUSTICE Diane Bernard, Claims to Universality, an Obstacle to International Criminal Justice? » 173 Hope Elizabeth May, Virtue Jurisprudence and the Function of Punishment in International Criminal Law » 187 Maria Antonella Pasculli, Some Reflections on Restorative Justice in Searching for Universal Justice » 215 Damien Scalia, The Illusion of Universality in International Criminal Law » 231 6 Universality of Punishment III. PUNISHMENT AND HUMAN RIGHTS Cristina Hermida del Llano, The Universality of Human Rights and the Universality of Punishment p. 251 Antonio Incampo, Don’t Kill Cain: Towards a Theory of Mesofacts and Punishments » 263 Heribert Franz Köck, Universality of Punishment and the Common Good of Mankind: Some Considerations of Principle » 277 Guglielmo Siniscalchi, Escape … to Alcatraz: Rechtsgefühl, Punishment, Prison Movies » 309 Acknowledgements » 329 About the authors » 331 Index » 333 Diane Bernard 171 II. UNIVERSAL JUSTICE 172 Universality of Punishment Diane Bernard 173 Diane Bernard Claims to Universality, an Obstacle to International Criminal Justice? There is no established theory of crime or punishment in international criminal law. A general rejection of impunity i.e. a will to punish is proclaimed in the search for international peace, as if punishing were the only option and an obvious reaction to mass atrocities. This paper discusses such ‘obviousness’ by focusing on the alleged ‘universality’ of international criminal law. My hypothesis is that its alleged universality could constitute a hindrance to the project of justice for mass atrocities. International criminal law is here defined as the branch of law dedicated to international crimes – genocide, crimes against humanity, war crimes, and crimes of aggression, considered as the “worse crimes.”1 This essay focuses more specifically on the International Criminal Court (ICC, founded by the Rome Statute), but references will also be made to national law and to the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). My argument first focuses on the alleged universality of international criminal law, but also on the resistance to this overarching discourse (sub 1). I then challenge the “universalisability” of the justifications for penalties by the ICTs and the ICC (sub 2). 1. A claim to universality The view that the punishment of some crimes is universally justified is explicitly stated in the concept of universal jurisdiction (i), and implemented in the Statute of the ICC (ii). It nevertheless is encountering growing opposition (iii). 1 A definition of international crimes is to be found in Antonio Cassese, International Criminal Law, 2008, pp. 3–27. 174 Universality of Punishment (i) Unlike other principles of jurisdiction, universal jurisdiction does not require any link to the locus delicti, the nationality of the offender or victims, nor the interests of the State. It transcends national sovereignty and the right of the accused to be prosecuted before his “natural judge” because of “the interest of the international community […].”2 The view that a community of nations shares common values, to be collectively and singularly protected, is not new.3 However, historically, the gravity of the crime i.e. a breached value was not the foundation of universal jurisdiction: it was due to fill the negative conflicts of jurisdiction in cases where no State was directly called to prosecute (piracy on the high seas, in particular).4 Therefore, the ratio legis of universal jurisdiction has always been to prevent any crime
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