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Risking Extinction: An International Crime?
Abstract
With the Anthropocene underway human beings are capable of creating global
catastrophic risks that could make humanity go extinct. This paper analyses the
badness of such risks in terms of global and intergenerational damage to human
security and its temporal trajectory. The paper argues that this is a bad distinct
from the mass suffering and death that could also be caused by global
catastrophic risks, and that it ought to be addressed with a new international
crime of 'postericide’. Postericide is committed by intentional or reckless
conduct that systematically creates a serious risk of near extinction for
humanity. A proper understanding of the moral imperatives embodied in
international criminal law shows that it ought to be expanded to incorporate a
new crime of postericide.
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Risking Extinction: An International Crime?1
We are living in the Anthropocene. This new epoch has been brought
about by the scientific and technological advances made by our species since the
Industrial Revolution. In the Anthropocene, people are capable of radically and
irreversibly altering conditions on the planet in ways that seriously endanger life
on Earth: the Anthropocene is an age of global catastrophic risks. Anthropocenic
endangerments to life on Earth are multiple. Familiar examples include
greenhouse gas emissions and land use changes causing global warming, the
decline of biodiversity as a result of damage to ecosystems and pollution, nuclear
technology and weaponry, and biological weaponry. Less familiar examples
include nanotechnology, AI, and cyberterrorism. Human activity that could
destroy life on Earth is taken seriously by established experts (Hansen 2011;
Rees 2003; Stern 2006).2 Yet political theorists have given surprisingly little
attention to what political, legal and social institutions are fit to enable human
beings to live well in the Anthropocene.
Although almost all life is endangered by some anthropogenically caused
global catastrophic risks, I shall focus here just on the risks to human beings. In
particular, I shall focus on the serious risk of near human extinction that some
global catastrophic risks contain. The fact that, on any account of it, the
probability of human extinction contained in relevant global catastrophic risks is
low does not mean that the risk of near human extinction is not serious
(Auerbach 2015; Jamail 2015). The seriousness of a risk is a product of its
probability combined with its severity: very low probability outcomes increase
in their seriousness as risks as the badness of the outcome increases in severity.
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The source of one of the most serious catastrophic risks we are imposing on
ourselves is global warming. The mass death and suffering that is already being
caused by human induced global warming and that will worsen in the decades to
come is a moral disgrace. Climate justice has been addressed by moral and
political philosophy in productive ways in recent years, at least at the level of
principle. For example, there is now a discernable landscape of theoretical
approaches to questions about how to distribute responsibilities for the costs of
mitigation and adaptation (REDACTED; Gardiner et al 2010). But the risk of near
human extinction created by global warming is bad in ways that are additional
and distinct from the badness of the mass death and suffering that will be caused
as global warming worsens, and this risk is not addressed in the emerging field
of climate justice. This reflects a lacuna in moral and political philosophy more
broadly, which has had almost nothing to say about what is bad about the risk of
near extinction, nor about how political institutions could govern conduct
bringing it about (Bostrom 2002; Bostrom 2013).3
In this paper I shall discuss the damage to human security that is caused
by any serious risk of near extinction. I shall argue that international criminal
law provides a normative framework within which wrongful conduct creating
serious extinction risks can be understood and addressed. Crimes against
humanity qua international criminal offences address wrongful conduct causing
mass suffering and death, but fail to address conduct creating extinction risks.
This is because extinction risks are bad in a way that is distinct from the badness
of mass suffering and death, as I argue through analysis of a stylised case
involving voluntary extinction. For these reasons I argue that international
criminal law can and should be extended to include a new category of offence to
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capture wrongful conduct creating extinction risks, which I call ‘postericide’. The
paper concludes by indicating some key theoretical challenges faced by a law of
postericide.
Extinction risks and human insecurity
It is reasonable to think that any serious risk of a bad outcome inherits its
badness from that outcome. The reason why it is wrong to play Russian Roulette
on a sleeping person is that it would be wrong to kill the sleeping person by
shooting her in the head. Any conduct that makes a bad outcome more likely is
ipso facto bad itself, all else being equal. This is not beyond dispute but I shall
assume it is true (Jarvis Thomson 1986). If it is true then to understand what is
wrong with the serious risk of near human extinction we need to understand
what would be wrong with a state of near extinction.
There are two ways of understanding the badness of near human
extinction. These are that near extinction would be impersonally bad - that is,
bad without being bad for anyone - and that it would be bad only because it
would be bad for people. Impersonal accounts of the badness of near extinction,
and so of serious risks of it, can be given (Lenman 2002). But if this is all there is
to say about the badness of extinction risks they fall outside of the scope of
international criminal law, which does not address victimless crimes. Leaving
open the question of whether the risk of near extinction is impersonally bad I
shall focus instead on giving an account of this risk in person-affecting terms,
which brings it within the purview of international criminal law.
A first thought is that the risk of near extinction is bad because it
endangers the basic human rights of any people within the scope of the risk.
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Some cases that come to mind most easily seem to be like this: global pandemics,
catastrophic climate change, or a nuclear winter all have the potential to damage
the human habitat in ways that would kill many and would make it almost
impossible for survivors to find food, shelter, and water. Anything that makes it
more likely that these outcomes will happen ipso facto is bad.
The first thought has its emphasis in the wrong place. We can see this by
noting that it would be possible for human beings to bring themselves to a state
of near extinction without directly violating one another’s rights. Imagine that
across the world, and at roughly the same time, nearly all women of child bearing
age decide not to procreate. Those who already have pre-pubescent daughters
persuade most of them to do the same. Most men support this decision.4 A few
pockets of human reproduction remain scattered across the globe; perhaps just a
few thousand breeding couples.5 Over the course of a century the human
population dwindles to the point of near extinction.
The path to near human extinction in the voluntary extinction scenario
would involve social, political, and civilizational collapse (Oreskes 2013).6 In a
state of near extinction no nation would be exempt, and the damage would be
very likely to transmit to subsequent generations. Non procreators and
procreators alike who are on this path would face significant threats to a range of
goods even if they are lucky enough to be in tight knit communities of mutual
support. We are all descended from a very small number - perhaps numbering
just tens of thousands - of homo sapiens located on what is now the west coast of
Africa. As our ancestors did, perhaps the procreators would be able to survive
and repopulate. A state of near extinction need not be a precursor to complete
extinction, and it is not necessarily permanent. But note that our ancestors were
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in a state of dangerous insecurity with respect to a range of fundamental goods
notwithstanding the fact that they were well adapted to their environment. In a
stateless world at the end of the voluntary extinction scenario the surviving
procreators and their children would be at best only as well off as our ancestors.
If the state of near extinction has been brought about by environment-destroying
events other than the free choices of non procreators - a series of supervolcanic
explosions, a massive asteroid, a nuclear winter, or a lethal global pandemic - the
remaining humans may be much worse off than our ancestors.
The damage caused by near extinction and the serious risk of it relates to
human as well as state security (Rothschild 1995). In a Westphalian world, state
security depends on the extent to which states can maintain sovereignty. State
security is damaged by external and internal activity and conditions that prevent
states from legitimately exercising a monopoly of force within their borders. A
more recently arrived vision of security that at most only contingently requires a
Westphalian world order for its protection is human security. Human security is
damaged by activity and conditions that affect persons’ and communities’ access
to fundamental human goods. When states are just, or at least well-ordered, they
are instrumental in ensuring human security for people within their borders. But
states can also cause great damage to human security: the ideals of state security
and human security do not always align. My focus here is on the damage caused
to human security by near extinction and any serious risk of it. If well ordered
states are instrumental to human security then the arguments I make here also
count as arguments for protecting the security of well ordered states.
The range of goods that can be made less secure by the collapse of political
and social institutions are on a spectrum of thin to thick conceptions (Sorrell
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2013). Thin security directs concern to protecting people from ‘threats to life
and limb’ only (Sorrell 2013, 177). Thick security covers a variety of threats that
go beyond threats to life and limb. The thick conception of security is evident in
many landmark Reports. For example, the 1994 UN Human Development Report
presents security as embodying a ‘concern with human life and dignity’ and is
focused on the importance of ‘safety from the constant threats of hunger, disease,
crimes and repression’ (UNDP 1994). The Report identifies seven areas in which
human security can be damaged:
1. Economic security, requiring ‘an assured basic income’.
2. Food security, ‘requiring physical and economic access to food’.
3. Health security, requiring freedom from disease and access to health
services.
4. Environmental security, requiring protection of the environment and
natural resources as a habitat for human beings.
5. Personal security, requiring freedom from violence inflicted by states,
groups, and individuals.
6. Community security, requiring the protection of groups - family, ethnic,
religious etc. - insofar as these groups do not perpetuate oppressive
practices.
7. Political security, requiring the protection and creation of political
societies that honour basic human rights (UNDP 1994, 25-33).
What makes the voluntary extinction scenario bad is the severe global and
intergenerational insecurity of those seriously at risk of near extinction, or in a
state of near extinction, across the UNDP categories. In this scenario the
trajectory on to which humanity is put by the decisions of the majority of their
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contemporaries has a cumulative impact on the goods reliably available to them
and their descendants, whose lives will continue beyond the deaths of the nonprocreators. For the procreators and non procreators alike, a world containing
the temporally extended benefits of large scale social cooperation is
disappearing as a result of what the non-procreators have chosen. Human
security is a temporally extended good: what matters for security is not just what
people have access to at any point in time but also whether that access will
continue in a reliable way in the future. Being free from the threat of physical
violence today is of minimal value to me in trying to live my life well unless I
know that most of my tomorrows will be the same. What matters just as much perhaps more - about security is its trajectory. This brings the interests of people
not-yet-born within the purview of political and social institutions that function
well with respect to security. Because security is a temporally extended good
whenever we achieve it for ourselves we also achieve it for people in (at least the
near) future too. A continuous commitment to security with a reliable trajectory
is a commitment to protect the interests of the unborn in perpetuity.
I said earlier that an account of the badness of a state of near extinction
focused on human rights is the wrong approach. However, some people think of
security as the object of a human right. For example, Henry Shue describes
security as a basic right: that is, a right without which no other rights can be
enjoyed (Lazarus 2015; Shue 1996). If that is true then is a human rights
approach to what is bad about near extinction correct after all? Is the badness of
near extinction (and any serious risk of it) well captured in terms of massive
global and intergenerational violation of people’s basic rights to security? If so
we must be able to identify the agents holding duties that correlate with the
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basic right to security (Lyons 1970).7 There are at least two options: individual
non procreators or states.
Are individual non procreators at fault for rights-violations in the
voluntary extinction scenario? For this to be true, the rights that all people have
to security (with a reliable trajectory) must correlate with duties that all people
have not to damage security. But it is implausible to think that the procreation
choices of the non procreators contravene these duties. First, this implies that
non procreators have a duty to procreate that is generated by respect for
people’s security rights (Lazarus 2015; Waldron 2011, 218-9).8 Freedom to
choose not to procreate is a central liberty right on any account of it, in which
case assigning a duty to non procreators to procreate in the name of respect for
the basic right to security generates a serious clash of rights. Although rights can
clash, and although procreation rights are not beyond question (McMahan 1981),
we should try to avoid a moral infrastructure that has such a clash at its heart.
Second, given that non procreators as well as procreators suffer damage to
security as the cumulative result of their individual choices, the view implies that
non procreators have self-regarding duties to procreate so as not to violate their
own rights to security. It is deeply controversial to think that people have selfregarding duties, and even more controversial to think that these duties are
generated by rights they have against themselves. This is another reason to
reject the claim that non procreators violate people’s rights to security in the
voluntary extinction scenario.
The root of the problem with assigning to non procreators responsibility
for mass violations of the basic right to security is that this approach treats
security an as individualised good which is degraded by attacks - or the risk of
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them - on particular individuals that would violate their right to security. As
Waldron notes in commentary on Henry Shue, it is preferable to use a public
good model for thinking about security. As he puts it, ‘[I]individuals benefit from
security (in the enjoyment of their rights) not because their own particular
security is attended to on a focused one-by-one basis but because threats to
security in general are removed or reduced by less personalized means’
(Waldron 2011, 213). It is debatable whether individuals can have rights to
public goods (MaCormick 1994; Raz 2000; Reaume 1988). If they can then
perhaps the badness of the voluntary extinction scenario can be captured in
terms of mass global and intergenerational violation of basic rights to security
after all. If they cannot it is still the case that the massive global and
intergenerational insecurity in the voluntary extinction scenario is bad; inter alia,
because such security is indispensable for the enjoyment of human rights, basic
and beyond (Waldron 2011).9
Regardless of whether or not people have rights to security as a public
good, using this framework enables identification of a more plausible candidate
for fault when security is damaged: the state. It is a familiar thought from the
social contract tradition that the most fundamental purpose of a state is to
enhance security over the baseline of the state of nature. In the voluntary
extinction scenario an environment of extreme insecurity has been created by the
choices of non procreators. States can mitigate (or exacerbate) this damage
through their acts or omissions. States have a duty to mitigate either in order to
respect the rights people have to security as a public good, or in order to provide
conditions indispensable for the enjoyment of human rights and other political
goods. Early on in the scenario perhaps states have a duty to try to persuade
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people not to stop procreation. Once it is clear that this is not effective perhaps
they have a duty to join with other states to form and enact a global security
plan. Perhaps they ought to heavily invest in sustainable energy sources, housing
stock and disease resistant crops to bequeath to the survivors born of the
procreators. If they do all of this very effectively perhaps the voluntary extinction
scenario is not an extinction scenario at all: there are far fewer humans but the
resources and infrastructure the state secures for them means that they are not
actually in a precarious position and will repopulate quickly.
Imagine now that the extinction scenario has come about in a more
sinister way. Human reproduction has almost stopped because a global
pharmaceutical company has heavily funded a world wide ideological campaign
to persuade people that they ought to stop procreating as a way of protecting the
planet from further human destruction. Perhaps this is happening in the context
of a rapidly declining global birth rate which makes the pharma company’s
campaign extremely potent with respect to creating a risk of near extinction. In
the sinister extinction scenario the pharma company supports this campaign in
order to create a strong market for its contraceptives, and also its euthanasia
drugs. The shareholders and directors of the company will pocket vast profits
and intend to continue to procreate; their enormous wealth will enable them to
shield themselves from most of the insecurity that will be created as a result of
their campaign. Perhaps they mount this campaign with the intention of creating
a near extinction risk: they want to maximise their chances of becoming the
future of humanity and they intend to use their huge profits to maintain
protected zones in which they can procreate without being exposed to
insecurities that non-company procreators face. Or perhaps they are just so
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profit-driven and money-crazed that they ignore the trajectory of insecurity that
they know their campaign is creating.
Moral responsibility for the massive damage to global and
intergenerational security in the sinister extinction scenario has a different
distribution than in the voluntary extinction scenario. In the sinister case the
conduct that creates the risk of near extinction is undertaken by a unified group
agent that intends to impose the risk, or at least knows that the risk will be
created by their conduct and acts anyway. In addition, many states that could but
do not address the MNC’s morally outrageous conduct are also at fault (although
perhaps a significant number of states are too weak to do so).
The sinister extinction scenario is, of course, structured focus attention on
what is morally outrageous about the conduct of some US fossil fuel barons who
create, fund and control climate denial groups. The conduct of these groups has
had a very significant impact on the failure of the US to commit to significant
emissions reductions, and its failure to meaningfully engage with global
agreements to tackle climate change, within a window of time for remaining
below 2C that is now closed (Geden 2015; Oreskes and Conway 2012). The
sinister extinction scenario can be reconfigured in many different ways that make
it possible to identify agents at fault for wrongful conduct that causes
impermissible damage to security and its trajectory. Perhaps the risk of near
extinction is created by powerful states in a nuclear arms race that escalates into
a nuclear war with devastating consequences. Perhaps the R&D division of a
biotechnology company ignores regulations as it re-synthesises a more robust
and more lethal version of the 1918 human influenza virus, which then falls into
the hands of a global terrorist organisation who use it as a weapon. Other
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examples could involve nanotechnology or artificial intelligence (Bostrom and
Cirkovic 2011).
To establish moral responsibility in any variation of the sinister extinction
scenario detailed consideration would have to be given to the questions of who
or what qualifies as an agent, the seriousness of the risk their conduct created
and how that is to be established, what they knew (or didn’t know and ought to
have known), and how that knowledge ought to have affected their conduct. In
many cases group agents (for example, states, corporations, networks) will be
the focus of attention (List and Pettit 2011). In some cases it may be possible to
identify individuals who are responsible for the imposition of the risk (for
example, the CEO of a corporation, the President of a state, or the head of a
network) (Kutz 2000).
The aim of my argument here not to show that real world climate denial or any other potential example - fits the sinister extinction scenario. Rather, I shall
argue that any conduct that does fit this scenario is properly addressed by
international criminal law once it is justifiably expanded to include a new
offence. In the next section I lay out the details of this new international crime
and I argue that the best theories we have of the moral foundations of
international criminal law justify extending it to incorporate this new offence.
Postericide: A New International Crime
International criminal law should be extended to include a new offence
that addresses wrongful conduct imposing a serious risk of near extinction. I call
this offence ‘postericide’. Postericide is committed by:
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Intentional or reckless conduct systematically and seriously threatening
the near extinction of humanity.
The actus reus for postericide is systematic conduct creating a serious
risk of extinction. It is likely that such conduct could only be undertaken by
group agents such as MNCs or states. Because trials under international criminal
law assign criminal liability to individuals, principles are required that justify the
attribution of criminal responsibility to individuals for the postericidal conduct
of groups to which they are appropriately related. This is the case for nearly all
prosecutions under international criminal law: postericide is not unusual in this
respect. Where the actus reus for postericide differs from existing offences is that
it specifies the imposition of a risk as part of the crime. Although there is
precedent in international criminal law for offences that relate to conduct
independent of the outcome it brings about - i.e. torture - there is no precedent
for crimes of risk imposition. This is not the case in domestic jurisdictions, where
‘inchoate’ offences of risk imposition are common; for example, drunk driving, or
the sale of hazardous products.
The mens rea for postericide - the subjective element of the crime that
relates to the agent’s mental states - is intention or recklessness. When an agent
acts with the purpose of wrongfully imposing an impermissible risk on a victim,
they act for wrongful reasons and attack their victim. When an agent acts
recklessly they fail to be guided by the right reasons in their conduct imposing an
impermissible risk, despite being conscious of the impermissibility of the risk
and the reasons not to impose it on others. Agents acting in this way endanger
their victims (Duff 2005). In assessing whether an agent is guilty of attacking a
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victim we need to know the reasons for which the agent did in fact act: Were
they hostile towards the victim? Did they seek revenge? Did they aim to
eliminate a rival in love, or in business? In assessing whether an agent is guilty of
endangering a victim we need to know the reasons to which they ought to have
attended in forming their intention to act: did they have special responsibilities
towards the victim that they failed to fulfil in their conduct? Did they have
responsibilities towards the victim qua human being that they failed to fulfil? All
offences under international criminal law as it presently exists are attacks.
However there are many domestic jurisdictions in which recklessness is a mens
rea for some criminal offences; for example, involuntary manslaughter (in the
UK) or carrying a concealed weapon (in the US). An implication of my argument
for postericide as an inchoate offence that qualifies as an attack is that there are
some cases in which international criminal law should have more continuity
with domestic criminal law.
The moral odiousness of postericidal conduct makes it fit to ‘deeply shock
the conscience of humanity’ for the reasons related to human security laid out
earlier (Rome Statute 2002). This is a prima facie case for taking postericidal
conduct seriously as a new international criminal offence. But the case is deeper
than that: the best existing normative theories of international criminal law
provide principled reasons for incorporating a new offence of postericide into
that body of law. The aim of this paper is not to argue that international criminal
law as prosecuted by the International Criminal Court ought to address
postericide. This body of law is young and fragile and the introduction of new
offences at this stage in its development might hinder progress towards the
universal jurisdiction at which it aims but is still far from securing. Rather, my
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argument is that there are good reasons to accept that a law of postericide in
principle ought to be included in international criminal law. This is because
human beings in the Anthropocene are capable of altering the world to create
serious risks of near human extinction that cause massive damage to security on
a global and intergenerational scale, and this conduct can be undertaken by
culpable agents. I shall outline the three most persuasive theories of the
international criminal law as a normative system in order to show that a law of
postericide has a proper place in international criminal law. These theories focus
on (1) human rights, (2) state failures, and (3) universal norms that bind
together the community of humanity.
First, consider the idea that international criminal law is morally justified as
an institution fit to protect basic human rights. There are at least two forms of
this approach which have different levels of commitment to the ‘collective’
element of international crimes; that is, the extent to which conduct violating
basic rights must victimise people as members of a group, or be perpetrated by a
group, in order to fall within the scope of international criminal law. In order of
decreasing commitment to the collective element these approaches are:
1. that international criminal law protects people from group based
violations of their basic human rights, where these violations also harm
humanity as a whole;
2. that international criminal law protects people as individuals from basic
rights violations, where the violations are caused by the widespread and
systematic conduct of groups;10
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Larry May’s analysis of crimes against humanity draws on (1). May identifies
two singly necessary and jointly sufficient conditions for conduct to qualify as a
crime against humanity. First, that the ‘Security Principle’ is not met; second, that
the ‘International Harm Principle’ is violated. The Security Principle expresses
norms related to states’ obligations to uphold the physical security and
subsistence of their individual members. When states fail to do this their
sovereignty may legitimately be pierced by international criminal law (May
2005). The Security Principle relates to obligations that states have to their
members with respect to their basic human rights (e.g. their rights to liberty, or
to be free from severe economic deprivation fit to deprive them entirely of
subsistence). Although states may be under an obligation to respect the whole
range of their members human rights (e.g. rights to political participation,
cultural rights, or rights to equal pay for equal work), May argues that the
violation of those rights does not justify legal intervention by the international
community. For this reason, May calls his Security Principle ‘morally minimalist’
(i.e. thin).
The International Harm Principle states conditions for the criminalisation of
conduct that satisfies the Security Principle. This is that the conduct must be
group based and must cause serious harm (as specified by the Security Principle,
i.e. serious violations of basic rights).
Only when there is serious harm to the international community, should
international prosecutions against individual perpetrators been
conducted, where normally this will require a showing of harm to the
victims that is based on non-individualised characteristics of the
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individual, such as the individual’s group membership, or is perpetrated
by, or involves, a State or other collective entity (May 2005, 83).
May thinks that the International Harm Principle enables him to claim
that an attack on an individual qua member (say) of an ethnic group by (say) a
state constitutes ‘an attack on humanity itself’ (May 2005, 121). In support of
this, he draws an analogy between humanity as a group susceptible to harm and
clubs. Just as a club has interests in its members not being harmed (because this
could damage the reputation of the club, or even threaten its existence) so
humanity as a group has interests, inter alia in individual human beings not
being harmed.
Prima facie May’s analysis lends support to making postericide an offence
under international criminal law.11 Part of what it is for states to uphold their
citizens’ basic rights is for them to uphold the conditions under which those
rights are secure. Conduct creating a serious risk of near extinction damages this
type of security on a global and intergenerational scale. When states (as
collective agents) fail to protect their members from such insecurity, and/or
when other collective agents create such insecurity, international criminal law is
authorised to pierce state sovereignty.
This, though, is too quick. May requires that conduct lying in the scope of
international criminal law harms humanity as a group in virtue of violating
people’s basic rights (or, I claim, threatening security, which is indispensable for
these rights) in response to their ‘non-individualised characteristics’. On May’s
view not all individual rights violations count as harm to humanity as a group.
Only those rights violations that happen in virtue of an individual’s membership
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of a group smaller than that of humanity as a whole (for example, when an
individual is persecuted because they are a member of an ethnic or religious
group) make the rights violation harmful to humanity as a whole.12 But conduct
creating a risk of near extinction appears not to satisfy this requirement: the
conduct affects people insofar as they are human, but not insofar as they are of a
particular gender, religion, or nationality. On May’s account postericide lies
outside the scope of international criminal law because its victims are not groupbased.
This part of May’s account is a weak link and the fact that it would put
postericide outside the realm of international criminal law does not impugn my
argument. The key is May’s claim that rights violations count as harm to
humanity as a group only when they are ‘individuality-denying’ (May 2005, 86).
May says that
[H]umanity is normally harmed in a way that the international
community should care about when an act is committed against
individuals because of their group affiliations–that is, according to things
that are beyond their autonomous agency (May 2005, 85).
Why should the only group affiliations that count for the purposes of
determining whether humanity as a whole has been harmed be limited just to
those that have, or could have been, autonomously chosen by those who have
them? Beyond ethnic origin it is not obvious that any group affiliations are
beyond autonomous agency. Arguably this is the case with respect to
membership of religious and cultural groups. And it is certainly the case with
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respect to membership of political groups. Taking May’s ‘autonomous agency’
restriction seriously might radically shrink the scope of rights violations which
can be addressed by international criminal law.
Putting that to one side it is not clear why only some violations of basic
human rights count as attacks that deny the individuality of victims. Assuming
that no one would (or could?) autonomously choose to have their basic human
rights violated why doesn’t every such attack deny the individuality of the
person attacked by making them a member of a group to which they would
autonomously choose not to belong, i.e. the group of victims? In which case, does
appeal to the interests of humanity as a group add anything (beyond rhetoric) to
the argument that international criminal law ought to address conduct that is
individuality–denying? As Altman and Wellman put it with respect to the Nazi
crimes against Jewish people, ‘[h]arm was done to the humanity of the Jewish
victims, but that is not to say that harm was done to humanity itself’ (Altman and
Wellman 2004, 42).
The idea that international crimes cause harm to humanity as a group and
that this can only happen as a result of individuality-denying attacks on people
ought to be excised from May’s approach. The fact that conduct creating a risk of
near extinction does not fit with these weakest parts of May’s overall approach is
thus no criticism. But why would May appeal to the idea of harm to humanity
given its obvious weaknesses? Andrew Altman and Christopher Wellman locate
this appeal in the need to justify universal jurisdiction by appeal to a harm - such
as a harm to humanity as a group - that crosses borders. On their view, this takes
the Westphalian paradigm too seriously and delivers an overly conservative
vision of the scope of international criminal law. Instead, they think, conceiving
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of the moral heart of international criminal law in terms of protection for basic
human rights makes it unnecessary to show the border crossing nature of
offences to bring them within its scope.
Altman and Wellman’s alternative model for thinking about the limits of
state sovereignty under international criminal law draws on a parent-child
analogy. Just as parents owe it to their children to treat them in certain ways, so
states owe their citizens basic political and social goods - inter alia, basic human
rights. And just as we think it is legitimate for external agencies to interfere with
parents who are failing to treat their children in morally required ways so we
ought to think it is legitimate for international criminal law to pierce the
sovereignty of states failing to protect and respect the basic human rights of
citizens. And ‘a state adequately protects basic rights when it neither perpetrates
nor permits widespread or systematic violations of those rights’ (Altman and
Wellman 2004, 47). Altman and Wellman have it that what makes international
crimes heinous is the individual rights violations they involve; they do not appeal
to the idea of harm to humanity as a group. But they do retain some commitment
to the collective element of international criminal law because they think that
rights violations have to be widespread, and will often be systematic, to qualify
as international crimes.13
Taking Altman and Wellman’s more sophisticated approach to
international criminal law as a system for protecting basic human rights
generates support for the incorporation of postericide into this body of law. The
risk of near extinction severely undermines the security of basic rights for all
human beings affected by it, and is thus widespread. And conduct fit to create
22
risks of this magnitude and severity will very likely be systematic even in cases
where just one person performs the act that ignites the risk.
The next account of the moral foundations of international criminal law is
what I call the statist approach. This approach is statist because the universal
jurisdiction of international criminal law is understood as addressing states’
failures to do that according to which their jurisdiction is justified. The focus of
this approach is on the principles which all states are morally compelled to
answer on pain of illegitimacy. David Luban gives a statist analysis of crimes
against humanity. These crimes, he argues, are committed only by ‘states or
state-like organisations’ (Luban 2004, 117).14 He gives a fleshed out account of
what it is that justifies the authority and jurisdiction of de jure states or state-like
organisations with a Kantian flavour.
Crimes against humanity are not just horrible crimes; they are horrible
political crimes, crimes of politics gone cancerous … As political animals,
we have no alternative to living in groups; and groups have no alternative
to residing in territories under someone or another's political control. For
a state to attack individuals and their groups solely because the groups
exist and the individuals belong to them transforms politics from the art
of managing our unsocial sociability into a lethal threat. Criminal politics
bears the precise relationship to healthy politics that cancer bears to
healthy tissue (Luban 2004, 117).
Luban argues that when a crime against humanity is committed against
an individual person something fundamental to being human is attacked: the
23
crime qualifies as an attack on the community of humanity as a whole in so far as
it strikes a blow against a value at the heart of that community. Luban interprets
that value in terms of the human need for political society containing institutions
fit to deliver justice to people given the unsocial sociability they share. As Kant
memorably puts it, each individual seeks political society with others ‘whom he
cannot bear yet cannot bear to leave’ (Kant 1970, 44). The point of political
institutions is to enable individuals to live together in conditions of freedom
while engaging in forms of social cooperation and interaction beneficial to each
given their different conceptions of what it is for a life to go well. When these
institutions function instead to deny people their freedom, and to prevent these
forms of social cooperation, they lose their legitimacy and the agents of these
injustices are brought within the purview of international criminal law.
The statist approach has it that protection against human rights violations
per se is not the primary purpose of international criminal law. What is done
when a state murders and persecutes people as a matter of policy, or when the
inadequacy of its institutions permit groups within its borders to do this to one
another, will of course involve human rights violations. And from the point of
view of individual victims the damage they suffer is a violation of their basic
human rights (Vernon 2003). But what makes this activity the business of
international criminal law is that the state is failing to do its job of protecting
people against such violations. The wrong addressed by international criminal
law when crimes against humanity are prosecuted under it is a political failure. It
is the failure to secure and sustain political institutions enabling people to live
together in conditions of justice which – inter alia – invariably makes possible
serious human rights violations. When this happens sovereignty is legitimately
24
pierced by international criminal law which is the instrument of humankind’s
opposition to the serious and systematic failures of political institutions making
the human rights violations possible.
The statist approach supports a law of postericide because on any
account of it one of the things states must do to be legitimate is provide security
in at least the thin sense. A serious risk of near extinction would damage thin
security on a global and intergenerational scale. If the moral foundations of
international criminal law are statist then it ought to include a new law of
postericide.
The final approach to consider focuses on the connection between
international criminal law and the fundamental human values that often appear
in justification of its special features. A good way into this is to consider what
trials do under international criminal law. The institutions of international
criminal law are decentralised and weak; the trials they enable are not steps on
the road to world government. Instead, this approach has it, these trials are
expressive processes: they state a commitment to the moral impermissibility of a
variety of acts performed ‘under colour of policy’ (Luban 2004 95). Trials under
international criminal law express the moral horror of the human community at
the conduct they address and courts conducting trials under universal
jurisdiction have standing to do this insofar as they give voice to such moral
outrage.
This approach criminal law per se is best developed in the work of Antony
Duff. He thinks that criminal liability is a form of accountability to a particular
political community given the public wrong of crime and in the absence
(sometimes, even regardless) of an excuse or justification. Duff conceives of
25
moral responsibility per se as relational in a triadic way: a person is always
responsible as something (X), for something (Y), to someone or some body (Z).
For Duff, moral responsibility (not) to do P is generated by roles that a person
occupies; that is, by the normatively laden description under which she acts at
any point in time. Those roles influence to whom she is answerable if she fails to
do (or does) P (Duff 2009). Criminal responsibility attaches to people insofar as
they are citizens of a particular political community. People sharing political
community are answerable to one another as citizens for the commission of acts
prohibited by principles of social cooperation making possible their shared
political life (Duff 2009, 49). Such ‘public’ wrongs are crimes and those who
perform them are criminally liable on grounds of fault when they lack
justification or excuse. On this view, criminal law is declarative or
communicative: ‘[i]ts role is not to make wrong what was not already wrong, but
to declare that these pre-legal wrongs are public wrongs: to declare, that is, not
merely that they are wrongs […] but that they are wrongs that properly concern
the whole polity, which should call their perpetrators to public account through
the criminal courts’ (Duff 2009, 86).
The expressive approach to criminal law extends to the international
context (Duff 2009, 54-5). In this context we are accountable to one another not
as members of a particular polity but as human beings qua political animals.
When states or other agents damage conditions necessary for human beings to
live together peacefully and profitably they are brought within the scope of
international criminal law. Given how human security is indispensable for people
to live decent lives whatever specific roles and associated duties they might have
26
within particular polities, the expressive approach supports the extension of
international criminal law to postericide.
Conclusion
My aim here has been to show that our best normative accounts of
international criminal law prima facie converge in their support of a new law of
postericide. This is because the massive global and intergenerational human
insecurity that would be created by a serious risk of near extinction bring
conduct creating or greatly exacerbating such risk within the purview of
international criminal law, all else being equal. It should be obvious that there is
much that must be made equal before the argument is fully complete and
convincing. I have said very little about fault-based liability for postericide, how
groups can be agents of postericide, how risks are individuated (so as to avoid
problems of remoteness) (Von Hirsch, 2012), how probabilities are conceived
and measured in assessment of the seriousness of risk, punishment for
postericide, or the real world cases to which a law of postericide might apply.15
Even if these aspects of a law of postericide can be successfully defended in
theory it remains an open question whether postericide ought to be
incorporated into international criminal law as it presently exists. In particular, if
this would be likely to make international criminal law even more fragile then
there may be good strategic reasons for not pushing for reform. Similarly, if the
advent of an international criminal offence of postericide would prompt those
(largely very rich and powerful people) engaged in postericidal conduct to go to
great lengths to hide what they are doing, thereby making the risk of near
extinction more serious than it would have been without the law, then there is an
27
argument for the status quo. Nevertheless a good moral argument at the level of
principle for postericide as a new international crime raises a question hitherto
unasked in international legal theory and practice: why not?
REDACTED.
The Stern Review posited an extinction probability of 0.1 per cent per year
which is equivalent to a 9.5 per cent risk of human extinction within the next 100
years. Subsequent to the publication of The Stern Review, Nicholas Stern
commented, ‘I got it wrong on climate change - it’s far, far worse’, The Observer,
Saturday 26 January 2013. See The Stern Review: The Economics of Climate
Change, UK Treasury 2006, Chapter 2, Technical Appendix, p. 47
3 Bostrom claims that there is a probability of 10-20 per cent of human
extinction within the next few centuries as a result of total existential risk, the
worst class of which is, he claims, human extinction.
4 The mission of the real world organization The Voluntary Human Extinction
Movement is to bring this about. See http://www.vhemt.org/ (accessed 9 July
2015)
5 This is, of course, a version of P.D. James’ world as depicted in The Children Of
Men (1992). In her version, extinction appears to be happening because of mass
infertility with an unknown cause.
6 We can imagine variations of the scenario in which this is not true. For
example, imagine that the state has under its control armies of perfectly
programmable, self-replicating, artificially intelligent bots that can be deployed
to fulfil in perpetuity all the functions of the state. In this scenario the non
procreators retain access to all the goods of large scale social cooperation. In this
scenario there may be bads created by a drastic reduction in the number of
humans and a massive increase in the number of bots, but these are not the bads
of (the risk of) near extinction, because human beings are not near to extinction
in this scenario. There are just a lot fewer of them.
7 The correlativity thesis as a general thesis about rights can be questioned. See
Lyons (1970).
8 This requirement would be an extreme example of what Waldron calls the
potential ‘voraciousness’ of the ideal of security; that is, how the pursuit of
security could ‘skew the balance between security and other important rights in
damaging ways’, Waldron (2011) at pp. 218-9. See also Lazarus (2015) at p. 439.
9 Waldron also asserts the view that security is indispensable for rights, rather
than itself the object of a right.
10 There is also a third version of the human rights approach that rejects the
collective element as a necessary condition for criminalisation under
international criminal law. For example, Massimo Renzo argues that
international criminal law ought to address all conduct that violates basic rights
in addition to conduct that has a collective element (Renzo, 2012). Because this
1
2
28
approach does not deny that crimes with a collective element are the business of
international criminal law - it aims instead to show that the reach of
international criminal law extends beyond crimes with a collective element - it
does not challenge my arguments that postericide ought to be supported by
theories of international criminal law that focus on human rights, and insist on a
collective element.
11 On the assumption, that is, that what he says about crimes against humanity
extends to other international crimes.
12 May admits there could be exceptions, and gives the bombing of Hiroshima as
an example (May 2005, 87).
13 They deny that systematicity is strictly necessary: failed states do not act
systematically and can commit international crimes (Altman and Wellman 2004,
48-9). Here, there is a further contrast with May, who makes systematic conduct
(by states or state-like organisations) a necessary condition for criminalization
in his ‘ideal model’ of international criminal law (May 2005, 89).
14 A less relaxed version of statism is in Vernon’s account of crimes against
humanity; he argues that only states can commit these crimes. Vernon (2003).
15 REDACTED.
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