BARBARA KORTH*

ESTABLISHING UNIVERSAL HUMAN RIGHTS THROUGH

WAR CRIMES TRIALS AND THE NEED FOR COSMOPOLI-

TAN LAW IN AN AGE OF DIVERSITY

ABSTRACT. This article explores the practical and philosophical issues associatedwith bringing diverse moral conceptions into the judgments of international crimes.It is argued that a Habermasian view of cosmopolitan law provides a possibility for

envisioning the way international courts can contribute to a universal moralityacross culturally disparate human rights conceptions. It is also argued that the mostuniversally acceptable human rights conceptions reflect a convergence of procedures

and substance. The author explores the treatment of rape in international war crimestribunals in order to demonstrate how these judgments advance a more universally-acceptable human rights conceptions.

KEY WORDS: cosmopolitan law, Habermas, ICC, rape, war crimes tribunals

It is quite possible that the most important questions for twenty-firstcentury jurisprudence involve the use of international criminal courtsas one of several possible responses to genocide, war crimes, andcrimes against humanity. To switch over humanitarian justice fromthe jurisdiction of nation-states to the international community, as isexemplified through international war crimes tribunals, tough ques-tions must be answered. What would the relationship of autonomousnation-states be to this international jurisprudence? How can an inter-national court mediate competing and diverse senses of morality andjustice in a way that satisfies its various constituents? What level ofconsensus regarding conceptions of human rights can be expected in apluralistic world? These are questions of the type that would be takenup in any serious attempt to make good on the possibility of interna-tional law with respect to genocide and other crimes against humanity.

Though modern experience can be somewhat informative regard-ing the relevant questions,1 another way to take the interrogation

* Barbara Korth Faculty of Education. Indiana University 201 North Rose AveBloomington IN 47405, USA.

1 W. Schabas, Genocide in International Law (Cambridge: Cambridge University

Press, 2000).

Liverpool Law Review (2006) 27: 97–123 � Springer 2006DOI 10.1007/s10991-005-5349-y

would involve drawing on salient social theory from which one mightimagine the possibilities of a successful international jurisprudence.The contemporary social theory of German criticalist Jurgen Haber-mas is certainly capable of providing a direction with respect toimagined possibilities in the realm of international law.2 Habermasdistinguishes between juridical rights of humans qua human andmoral rights constituted within the context of an individual life his-tory with its cultural commitments. This important distinction envi-sions the possibility for a democratically constituted, internationaljurisprudence that is capable of judging cases of genocide and crimesagainst humanity across quite disparate moral and cultural contin-gencies. Toward this end, Habermas argues for a revised Kantiancosmopolitan law. Habermas’s Theory of Communicative Actionpromotes the humanistic possibility of rational deliberation on moraland juridical issues; avoiding, to the greatest extent possible, deci-sions that fail to take into account all who might be affected by saiddecision, showing: ‘why the implementation of such rules is in theequal interest of all persons qua persons, and thus why they areequally good for everybody.’3

This paper explores the possibilities for a program of interna-tional jurisprudence as imagined through Habermas’s contemporarycritical social theory. Habermas’s theory has been most influentiallydiscussed in terms of its procedural demands for law, but in this pa-per it is demonstrated that with respect to basic human rights quahuman the substantive and procedural aspects of the law converge.4

The example of prosecuting rape as a war crime, crime againsthumanity and genocide is used to illustrate this convergence withrespect to international law.

ON THE NECESSITY FOR COSMOPOLITAN LAW IN THE JURISPRUDENCE

OF HUMAN RIGHTS

In a recent lecture, Habermas argued for global movement towardcosmopolitan law.5 Cosmopolitan law transforms politico-legal

2 M.Deflem, ‘‘Introduction: Law inHabermas’s Theory ofCommunicative Action’’,in M. Deflem, (ed.),Habermas, Modernity and Law (London: Sage, 1996), pp. 1–20.

3 J. Habermas, The Inclusion of the Other: Studies in Political Theory (Cambridge,

MA: MIT Press, 1998), p. 191.4 J. Dal, ‘‘Discourse Ethics and Human Rights in Criminal Procedure.’’ In

Deflem, supra n. 2.5 J. Habermas, The Kantian Project of Cosmopolitan Law. Lecture delivered at

Purdue University, October 15, 2004.

98 BARBARA KORTH

power from the principle of popular nation-state sovereignty to theprinciple of world citizenry.6 The philosophical basis for this re-quires, in part, conceptualizing basic human rights as rights whichexceed the jurisdiction of the nation-state and which are juridical innature, rather than merely moral. It is on the basis of varying con-ceptions of human rights that cosmopolitan law could adjudicategenocide and crimes against humanity. In practical terms, thismeans establishing a trans-national legal system and institution(s)through which the political needs of world citizens can be legallymediated, and including an executive branch that can carry outappropriate sanctions.

One important difference between cosmopolitan law and con-temporary international law has to do with the sovereignty ofnation-states in regard to an international legal system:

The conception of sovereignty in classical international law entails a prohibition

on interference in the internal affairs of an internationally recognized state. Theprohibition of intervention is indeed reaffirmed by the UN Charter; but from thebeginning it stood in tension with the development of the international protection

of human rights.7

Habermas has argued that international law must be switched overto cosmopolitan law in order to achieve an adequate, globally validjurisprudence for human rights. For Habermas, all other systems ofinternational will fall short of this goal.

Human Rights and the Necessity for Cosmopolitan Law:Philosophical Justification

According to Kant (and quoted by Habermas): ‘Freedom (indepen-dence from being constrained by another’s choice), insofar as it cancoexist with the freedom of everyone else in accordance with theuniversal law, is the only original right belonging to every man byvirtue of his humanity.’8 Such a human right exceeds its appear-ance in the constitutions of nation-states because it is a right for allhuman beings qua human, not a right contingent upon or evenmerely sensible given a particular culture, life history, or moral per-spective, though it should certainly be respected through positivelaw that is established under those contingent conditions. There is

6 E. Eriksen and J. Weigard, Understanding Habermas. Communicative action anddeliberative democracy (London, NY: Continuum Press, 2005).

7 J. Habermas, supra n. 3, p. 147.8 Ibid., p. 192.

99ESTABLISHING UNIVERSAL HUMAN RIGHTS

a dual character of human rights that can be expressed like this:‘Human rights enjoy both ‘‘positive validity’’ [in positive law] asconstitutional norms and ‘‘suprapositive validity’’ [in natural law]as rights possessed by each person qua human being.’9 This doesnot always get translated into an adequate practice of justice, aswill be seen in the case of rape.

This suprapositive validity of human rights intuitively suggeststhat rights are those of a species-level citizenship in the world com-munity. For Habermas, the notion of basic human rights is trans-subjective, and can best be protected through: ‘the democratictransformation of morality into a system of positive law with legalprocedures for their application and implementation’ or ‘a cosmo-politan transformation of the state of nature among states into alegal order’10 and tolerance for difference.

Cosmopolitan law secures such citizenship in a legally and politi-cally direct way: ‘The point of cosmopolitan law is, rather, that it by-passes the collective subjects of international law [as nations] anddirectly establishes the legal status of the individual subjects bygranting them unmediated membership in the association of free andequal world citizens.’11 In this way, people would be citizens of boththeir nation-state and the world without these being co-dependent.

Habermas’s conception of cosmopolitan law reflects a criticalcommitment to the possibility of establishing international justicefor human rights – not just despite the disparate views across theworld’s populations, but in benefit of those disparate views. Incomplex societies: ‘law is the only medium in which it is possiblereliably to establish morally obligated relationships of mutualrespect even among strangers.’12 This point is even more germaneto human rights than it is to other realms of moral obligationbecause of the supra-positive validity of human rights.

This marks a fundamental feature of Habermas’s view; namely,that basic human rights should not be confused as moral rights sen-sible in the cultural context only – rather, they are juridical rightsfrom the very start.13 What lends them their moral character is theirmode of validity. Though at present, basic human rights are mainly

9 Ibid., p. 189.10 Ibid., p. 201.11 Ibid., p. 181.12 J. Habermas, Between Facts and Norms, Translated by William Rehg

(Cambridge, MA: MIT Press, 1996), p. 460.13 Supra n. 3, p. 201.

100 BARBARA KORTH

realized in the law of nation-states,14 their validity supercedes thenormative realm of citizen rights:

Basic rights are equipped with a universal validity claim because they can be justi-fied exclusively from the moral point of view... Basic rights, by contrast [to other

legal rights that are culturally contingent], regulate matters of such generality thatmoral arguments are sufficient for their justification.15

In response to the Kosovo tragedies, Habermas argued that crimesagainst humanity must be treated as criminal acts through a systemof justice, rather than: ‘according to directly [culturally established]moral standards.’16 Habermas has consistently argued against thepremise that a nation-state should act in the international sphere,with human rights as a moral justification for its actions. Thoughadmittedly appropriate in extreme cases, this cannot satisfy thecapacity to deliver human rights globally over time. Nor can it suf-fice as an international standard through which nation-states cantake up human rights causes on a global scale:

Things look quite different, when human rights are not just regarded as a moralguide for one’s own political actions but as rights which have to be implemented in alegal sense. Disregarding their moral content, human rights essentially display the

structural features of subjective rights, which naturally have to be framed by someform of obligatory law in order to gain any positive value. Only if human rights en-ter the legal sphere of a worldwide democratic legal order, similar to the basic hu-man rights embedded in our national constitutions, will we be able to say that the

addressees of these rights can see themselves also as their authors [italics added].17

For Habermas: ‘Whereas the moral person stands so to speaknaked before the inner court of his or her conscience, the legal per-son remains wrapped in the protective mantle of – morally well-grounded – individual liberties.’ Cosmopolitan law would bindcourt decisions to: ‘intersubjectively testable conditions of constitu-tional procedures’ applicable to both the content of crime and theprocedures protecting the innocent.18 These basic rights are the

14 There is an international code for human rights, but this code does not havelegal status except through acceptance on the level of the nation-state and throughtheir instantiation with respect to, for example, verdicts on torture, genocide and

other war crimes.15 Supra n. 3, p. 191.16 J. Habermas, (April 29, 1999). ‘‘Bestiality and Humanity: War on the Border

Between Law and Morality.’’ Die Zeit 54/18, pp. 1–8. Translated to English by FranzSolms-Lubach. Accessed November 7, 2003 from www.theglobalsite.ac.uk.

17 Ibid.18 Ibid.

101ESTABLISHING UNIVERSAL HUMAN RIGHTS

broader context within which a cosmopolitan law could adjudicategenocide and crimes against humanity.

From a Habermasian perspective, any successful attempt toestablish an international understanding of human rights would in-volve the Universalization Principle (U). The Universalization Prin-ciple holds that: ‘[a]ll affected can freely accept the consequencesand the side effects that the general observance of a controversialnorm can be expected to have for the satisfaction of the interests ofeach individual.’19 In other words, the norms must deserve the as-sent of all who would be affected. This principle is morally presup-posed (not necessarily actualized in empirical terms) in allnormative deliberations, including those systematized through legaldiscourse. The specific content of the norms are not set forth by(U), though (U) has something relevant to offer substance. Namely,on the level of content, the norms could not oppose (1) freedom toaccept or not (including the freedom to participate), (2) individualequality across participants (effects for one person are not seen asmore valuable then effects for another person), OR (3) the trans-subjective awareness (empathy or solidarity) of effects for all.

Competing moral conceptions require the achievements of (U)for their deliberation through what Habermas refers to as the Dis-course Principle (D). The discourse principle requires that: ‘Onlythose norms of action are valid to which all possibly affected per-sons could assent as participants in rational discourses.’20 For Hab-ermas, this philosophically frees deliberations on human rightsfrom cultural constraints because (D): ‘generalizes, abstracts, andstretches the presuppositions of context-bound communicative ac-tions by extending their range to include competent subjects be-yond the provincial limits of their own particular form of life.’21

This requires that the test for normative validity be as broad as theclaims. If there is a normative claim that rape is too atrocious tospeak of (as was the claim made in the Nuremburg Trials), thevalidity of that norm has to be tested across all possible and imag-ined competent subjects who could conceivably be affected by thenorm – including the women who had been raped. With basic hu-man rights this would mean speaking with broadest possible audi-ence/‘authors.’

19 J. Habermas, Moral Consciousness and Communicative Action, Translated byC Lienhardt and Shierry Weber Nicholson (Cambridge MA: MIT Press, 1990), p. 93.

20 Supra n. 12, p. 459.21 Supra n. 19, p. 202.

102 BARBARA KORTH

Habermas derives (U) and (D) from his Theory of Communica-tive Action. This theory involves identifying the pragmatic struc-tures implicated in any mutually reciprocal attempt of two subjectsto understand one another.22 It has two fundamental aspects: ‘theautonomy of inalienable individuals and their embeddedness in anintersubjectively shared web of relations.’23 There is a universalisticmorality entailed in these pragmatics: (1) equal rights of individualsand (2) equal respect that is dependent upon: ‘an intersubjectivelyshared web of relations’ and a system of mutual recognition. This isa pragmatically universal morality: one which is internally constitu-tive of communication itself as a limit case in its ideal form (theideal speech situation). These two fundamental aspects pick up thethree content implications of (U) that were just mentioned. So while(D) is a procedural concept, it relies on and justifies the substance ofequal rights and equal respect. These both precede and exceed theconstitutions of nations and the concrete life histories of individualactors without disposing of them. They are juridical in nature.

The juridical nature of human rights involves both the proce-dural and the substantive character of this universalistic morality.Universal morality and the moral content of specific actors in rela-tion to their own subjectively lived world (lifeworld) must simulta-neously protect the rights of the individual and the well-being ofher community(ies). In everyday lived experience, there is a divisionof labor between justice (protecting the rights of the individual)and solidarity (empathy and concern for the well-being of the com-munity) which does not exist on the level of universal morality.This division renders the substance of morality in the concrete life-world, incomplete and contestable. The content must be continuallyrevised through procedures that, in the end, point toward a moreuniversal morality, always also somewhat in revision. It is on thelevel of universal morality that basic human rights emerge as al-ways-already juridical within the substance of any incomplete andcontestable system of justice, ethics and morality. With the previ-ous example of rape at the Nuremburg Trials, one could see howthe morality of the concrete life-experience (one should not speakof such things as rape) blocked the deliberation of a more universalmorality. Within the latter, questions of equal rights and equalrespect should have provided the litmus test for including rapecrimes as among those prosecuted, rather than an occasion for the

22 He has referred to this as ‘‘The Ideal Speech Situation.’’23 Supra n. 19, p. 202.

103ESTABLISHING UNIVERSAL HUMAN RIGHTS

expression of culturally contingent moral distaste for speaking ofsuch atrocities.24

Genocide and crimes against humanity are philosophically con-ceptualized as de facto juridical in nature because they are crimes thatbreach basic human rights. Prohibitions on genocide and crimesagainst humanity (precisely because they assert the positive acknowl-edgement of basic human rights) must stand up to universal validitytests – suprapositive validity. In fact, as was made clear at theNuremburg trials, crimes against humanity did not have to formallyexist in the legal realm for there to be reason-enough to indictpeople and hold them accountable to the assumptions of humanrights testable through presupposed universal validity.

This fundamentally juridical, trans-subjective, suprapositive nat-ure of human rights is the ultimate philosophical justification forcosmopolitan law and it simultaneously invokes practical justifica-tion. Philosophically speaking, nation-states do not grant humanrights through citizenship in the nation-state, these rights arehuman birthrights and yet they are juridical. Then, on a practicallevel, this juridical nature must be legally secured outside theboundaries of the nation-state.

Human Rights and the Necessity for Cosmopolitan Law: PracticalJustification

A transformation from nation-state jurisdiction to cosmopolitanlaw is necessary, in part, as a response to globalized humanitarianneeds and economies which resist the autonomy and sovereignty ofthe nation-state. Within the global context, this sovereignty is chal-lenged even for the nation-states of super-powers, like the UnitedStates. The terrorist acts of 9–11, amongst other things, demon-strated this. Habermas has said there is a pressing need for aninternational juridical response to pressures of a global economyand humanitarian needs. These pressures make cosmopolitan lawnot just possible to envision, but also necessary. The world hasbecome an international community of risks – risks which unitepeople beyond the borders of nation-states.25

24 V. Kesic (2001). ‘The Status of Rape as a War Crime in International Law:Changes Introduced After the Wars in the Former Yugoslavia and Rwanda.’ MAThesis Prepared for the Committee of Liberal Studies, New School University. South

Eastern European Women’s Legal Initiative. Accessed March 1, 2005. http://www.seeline-project.net/status_rape.htm.

25 Supra n. 12, p. 444; supra n. 3, p. 150.

104 BARBARA KORTH

Nation-state sovereignty has allowed within-border genocide andcrimes against humanity to develop unchecked by the internationalcommunity.26 Following World War II, there was a common-en-ough recognition that positive law in the hands of totalitarian re-gimes was insufficient for securing humanitarian justice. Thepossibility of an international community addressing human rightsissues across national borders surfaced as a very real prospect, chal-lenging the premises of the Treaty of Westphalia 1648. The interna-tional community, led by the United States, revolutionized classicalinternational law: ‘by limiting the sovereignty of nation-states, byabolishing the immunity of state authorities from supranationalprosecution and by incorporating unprecedented crimes into the pe-nal code of international jurisdiction.’27 In other words: ‘Theunprecedented nature and scale of the government criminality...makes a mockery of the classical presumption of the innocence ofthe sovereign subjects [nation-states] of international law.’28 Itfurther justifies the need for supranational, cosmopolitan law.

The institution of ad hoc war crimes tribunals was the interna-tional response to a practical problem. This practical problem is nolonger as narrow as it seemed it might be at the time. Though simi-lar situations also demand international intervention, these warcrimes tribunals no longer solely meet the humanitarian need forinternational justice. According to Amnesty International, the glo-bal economic pressures, political dissatisfaction and helplessness,and identification with factions and fundamentalism have increasedthe extent to which nation-states are not able to either internallycontrol or externally respond to the pressures. This situation fur-ther compromises the nation-state’s legitimacy,29 and increases aneed for cosmopolitan law over the contemporary form of interna-tional law, which possesses merely ad hoc legitimacy.30

Another practical argument for cosmopolitan law involves dif-ferences in the ways human rights are conceptualized across cul-tural and national groups. When in-groups retain/protect human

26 E.O. Eriksen, Why a charter of fundamental human rights in the EU? ARENAWorking Paper, 2002. Accessed from the web March 1, 2005. http://www.

arena.uio.no/publications/wp02_36.htm27 J. Habermas, ‘‘Letter to America’’, The Nation (December 16, 2002).28 Supra n. 3, p. 150.29 P. Sane, ‘‘Human Rights: An agenda for action’’,West Africa 3978 (1993), Dec.

20, p. 2294.30 G. Boradori, Philosophy in Time of Terror: Conversations with Jurgen Habermas

and Jacques Derrida (Chicago: University of Chicago Press, 2003).

105ESTABLISHING UNIVERSAL HUMAN RIGHTS

rights for their own, but deny these to out-groups, a defective hu-man rights conception is in operation.31 Drydyk argued that defec-tive human rights concepts can be found in all cultural traditions,but that cross-cultural dialogue (when not abused) would forbiddefects because ultimately all such defects as can be withstoodinternally are not so easily sustainable when faced with an out-group partner as a conversant. In other words, defective humanrights claims at the cultural level would have their defectiveness re-vealed through conversations with other cultural groups. This prac-tical effect of putting in-group human rights concepts into atransnational/transcultural dialogue requires an international for-um, one that might best be institutionalized as cosmopolitan law.Thus, the defects in cultural conceptions of human rights standmore of a chance of being corrected and transformed when theyare held up against non-reciprocal views of out-groups, includingalternative culturally contingent human rights conceptions. Thisperspective suggests that cultural diversity itself contributes to amore universally plausible conception of human rights, rather thanthat it nullifies or puts at risk such a possibility.32

The substantive conception of human rights will vary across cul-tures and putting this variation into dialogue, at least in principle,can advance a successively more universally acceptable, practicalconcept of human rights.33 For example, there are differences in theway rape is criminally defined across cultures and nations, includingthe extent to which rape might be considered a violation of humanrights. In an ongoing gang rape case in Pakistan, 6 men who wereordered by the village government to rape a woman as punishmentfor her brother’s suspected affair have been brought to trial. In ruralPakistani villages, the practice of honor killings and rapes againstwomen (to punish men) is still valued as part of tribal customs.However, in Pakistan, the village justice system of honor killings/rapes is being directly challenged by Pakistan’s Islamic Law.34

31 J. Drydyk, ‘‘Globalization and Human Rights’’, in Christine Koggel, ed. MoralIssues in Global Perspective (Peterborough, Ontario: Broadview Press, 1999),

pp. 30–42.32 D.Carey, ‘‘ACosmopolitanEpoch:Configuringa JustWorldOrder’’,TheCulture

Mandala 6/1 (2003). Accessed 01/03/05 from http://www.international-relations.com/

wbcm6-1/WbCosmopolitanNew.htm33 Supra, n. 19.34 Ikram Tahir (March 11, 2005). ‘Pakistani Court Throws Out Village Rape Case

Ruling’ Source: Reuters. Accessed March 16, 2005. http://www.alertnet.org/the-

news/newsdesk/ISL19361.htm

106 BARBARA KORTH

Honor raping is receiving mixed decisions in the courts withinPakistan itself.

We can extend our view of differences in the way rape is adjudi-cated by noticing how rape is even defined. For example, the ZinaOrdinance35 in Pakistan (instated in 1979) does not allow for rapeto be indicted between married partners. This differs from the USand Britain where marital rape can be prosecuted though, in NorthAmerica, many states offer exemptions to husbands on variousgrounds.36 The European Court of Human Rights examined thedifferences in rape definitions across its member nations.37 Inmany, but not all, EU nations since 1989, rape convictions do notrequire proof of force anymore. Actually, in some nations, theaccused has to demonstrate consent. Rebecca Cook wrote:

The equality approach starts by examining not whether the woman said ‘no,’ butwhether she said ‘yes.’ Women do not walk around in a state of constant consent

to sexual activity unless and until they say ‘no,’ or offer resistance to anyone whotargets them for sexual activity. The right to physical and sexual autonomy meansthat they have to affirmatively consent to sexual activity. To assume otherwise is abreach of their equality rights protected by the guarantees of equality and security

of the person found in the national constitution and of the states’ obligations un-der international treaties such as CEDAW [Convention on the Elimination of allforms of Discrimination Against Women].38

Such differences set the context for a trans-cultural conversation (inprinciple) on the most universally appropriate legal definition ofrape. In 1995, the Beijing Convention on Human Rights assertedthat marriage did not provide sanctuary for forced sex. Proof offorce was still expected. The Beijing Convention, as an Interna-tional forum, asserts that freedom from rape is a basic human right– not something defined by citizenship in a state or nation. Never-theless, states and nations establish rape as criminal in varyingdegrees and for a variety of reasons. The most universally moral

35 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 (hereinafter ZinaOrdinance). The Zina Ordinance encompasses the crimes of zina, which can betranslated as both adultery and fornication, and zina-bil-jabr, which can be trans-

lated as rape. Sections 3 and 19(3), Offence of Zina (Enforcement of Hudood)Ordinance, 1979.

36 R. Bergen, ‘‘Marital Rape’’, Applied Research Forum. National Electronic

Network on Violence Against Women 1999:Accessed March 16, 2005. http://www.vaw.umn.edu/documents/vawnet/mrape/mrape.html

37 M.C v Bulgaria, Application no. 39272/984 December 2003.38 Cook, Dickens and Kaufman, ‘‘Report to the UN Special Rapporteur on

Violence against Women – Analysis of Canadian Law’’, ibid.

107ESTABLISHING UNIVERSAL HUMAN RIGHTS

definitions may not actually be in place in any one particular na-tion-state, but may emerge in the cosmopolitan conversation ofequals. The point here is that nation-state morality might lag be-hind the international articulation of human rights, which canemerge through transcultural dialogue.

Habermas would say that a system of cosmopolitan law canhelp to bring about a more direct examination of the way humanrights are conceptualized in a pluralistic world. Without this, theinternational community’s human rights concerns remain a merecollection of conversations whose only potential is to be re-stakedwithin the nation-state. With cosmopolitan law, this internationalcommunity could be tapped into when adjudicating human rightsissues. For example, what difference does the Beijing Conventionpronouncements make to the US or to Pakistan? Under cosmopoli-tan law, the question could be raised in a pluralistic forum that ex-tends beyond (while also including) the communities in which someforms of rape are not criminal and others are. This would movethe discussion substantively toward a more universal morality.

One more practical need for cosmopolitan law involves the irre-versible globalization of the nation-state context. This globalizationmeans that decisions of nation-states have increasingly larger rami-fications for the international community in both general and par-ticular ways. It will take cosmopolitan law to both provide andlegitimize the procedures for adjudicating, executing, and legislatingglobal interests and to attend to the way human rights issue surfacein new ways, including, for example, judgments on eugenics.39

Practical justification for cosmopolitan law locates genocide andcrimes against humanity within this larger context of adjudicatinghuman rights issues. The international community has a practicalneed for cosmopolitan law to enable the adjudication of genocideand crimes against humanity, which occur within and across theboundaries of the nation-state. This would allow for the protectionof human life and human dignity even where such protection isneeded from one’s own state. The practice of cosmopolitan lawwould provide the structure needed to facilitate international andintercultural dialogue with respect to human rights. In such dia-logue, the moral content is not predetermined, but is rather opento universal moral validity criteria. Though moral content is notforeclosed, there remain substantive aspects to the procedures that

39 J. Habermas, The Future of Human Nature (Cambridge: Polity Press, 2003).

108 BARBARA KORTH

are aimed at protecting universally moral justice posited as basichuman rights.

Legitimate International Jurisprudence for Human Rights andGenocide: Critique of Current International Law

Thus, according to Habermas, it takes a system of cosmopolitanlaw to philosophically and practically legitimize an internationaljurisprudence for human rights in general. Ad hoc war crimes tribu-nals sufficed for bringing crimes against humanity and genocideunder international judicial control in the aftermath of World WarII. However, cosmopolitan law would demand a system of justicethat is on-going and is coupled with the executive power to enforcesanctions, and the legislative power to secure the articulation oflegal statutes. Some semblance of such structures has developed inrecent decades, for example the creation of the UN Security Coun-cil (1945) and the establishment of an International Criminal Court(ICC) in the Hague (2003), but these do not have politicallegitimacy or the force of cosmopolitan support/unity.

According to Habermas, the path toward greater humanitarianpeace in the resolution of international war crimes, genocide, andcrimes against humanity would require that: ‘[especially] nations[with the capability to resolve conflicts militarily (like the U.S.)]choose [instead] to defer to an international juridical process.’40

Moreover, current international law does not allow citizens to usethe court to make effective claims against their own nation, butcosmopolitan law would embrace such cases. Judging crimes whosebasis lie in violations of cosmopolitan law would also require thecapacity to impose appropriately sanctioned sentences. From aHabermasian perspective, cosmopolitan law through which geno-cide might be systematically adjudicated internationally must beconceived within a system of legitimate democratic participation byits participants – citizens of the world. Moreover, the world wouldneed a permanent court with effective executive support (executivecapacity to enforce decisions/sanctions).

None of these conditions is in operation with the ICC. Of pri-mary significance is that according to Article 17 of the ICC statute,national jurisdiction is complementary to the jurisdiction of theICC. This means that once a nation-state has exercised jurisdictionover a case, it is inadmissible to the ICC.

40 J. Habermas, supra n. 27.

109ESTABLISHING UNIVERSAL HUMAN RIGHTS

The US is a particularly troublesome contester of internationaljustice. At present, the US is running a form of unilateralism,which explicitly works against cosmopolitan law and internationaljurisprudence from the Habermasian perspective.41 For example,the US has the military, political, and economic power to avoidany just decision against it by international law. For a nation torely on might and power rather than submit to justice and democ-racy is a basic rejection of a juridical model of social life. More-over, the US has declined to participate or be accountable to thejurisdiction of the International Criminal Court.42 Furthermore,the US has entertained a Bill that would cut aid to countries whoparticipate in the ICC.43 Such decisions are not conducive toestablishing cosmopolitan law. Even the more moderate view ofinternational law that supports national priority in the legal reso-lution of human rights issues over international sovereignty,would still actively advocate for the ICC and the importance ofsupporting it in the cases of both international issues and in thecase of national issues that cannot be resolved nationally.44 TheICC could be considered a step in the right direction in terms ofinternational jurisprudence, but it is also flawed in principleprecisely on points that differentiate it from a court under cosmo-politan law.

HUMAN RIGHTS IN AN INTERNATIONAL CONTEXT

The juridical nature of human rights in the context of cosmopoli-tan law works on two levels in the international prosecution ofgenocide and crimes against humanity even if the system of

41 Supra n. 5.42 In a communication received by the ICC on 6 May 2002, the Government of

the United States of America informed the Secretary-General of the following: ‘Thisis to inform you, in connection with the Rome Statute of the International CriminalCourt adopted on July 17, 1998, that the United States does not intend to become a

party to the treaty. Accordingly, the United States has no legal obligations arisingfrom its signature on December 31, 2000. The United States requests that itsintention not to become a party, as expressed in this letter, be reflected in thedepositary’s status lists relating to this treaty.’

43 T. Tokedira, U.S. Threatens to cut aid to Countries that Support the ICC.MediaRelease, Human Rights First, December 7, 2004). Accessed March 1, 2005. http://

www.humanrightsfirst.org/media/2004_alerts/ij_1207_icc.htm44 K. Sullivan, (Submitted January 24, 2005). ‘Brief of Amici Curiae Bar Asso-

ciations and Human Rights Organizations in Support of Petitioners.’

110 BARBARA KORTH

international law has not yet overcome its procedural problems. Inthis pluralistic world society, substantive adjudication will requirethe careful negotiation of content most acceptable to a universalaudience, to a universal morality. This remains the case even whereone particular concrete lifeworld actualizes this through its ownpractices and principles of justice. This is accomplished throughsets of appropriate procedures. However, both the substance and theprocedures of human rights litigation point toward a universal moral-ity that is two-fold: (a) ‘individual’s uninfringeable freedom to re-spond with a ‘yes’ or ‘no’ to criticizable validity claims’ asuniversally internal to the very structure of understanding itself;and (b) the individual’s ‘empathetic sensitivity’ to everyone else.45

This was well expressed by Seel (1996) and quoted by Habermas:

Therefore morality treats all members of the human species as beings wanting lifeas a person, irrespective of the degree to which they are actually capable of lead-

ing such a life... The respect of the integrity of the other, established in the mutualrecognition of persons, must apply to all human beings without exception; they allhave the same fundamental right to participation in life as a person, irrespectiveof the degree to which they have (at all or temporarily) the capacity to self-deter-

mined participation. The core of morality can only be the most simple one, thatis, to treat all human beings as human beings.46

Though Habermas’s Theory is generally conceived of as proceduralrather than substantive, the remainder of this article will examine aHabermasian analysis of the substantive content of human rights inthe context of international law, particularly with respect to rape.Most often, it is argued that Habermas purposefully does not con-tribute to the substantive perspectives that might emerge throughproperly adjudicated deliberations, focusing instead on the proce-dures that make possible a multi-perspectival, egalitarian, open dis-course on the substance.47 The substantive contributions ofHabermas’s theories to our understanding of basic human rights ininternational law are understated. Habermas strikes an interestingbalance in asserting the impetus for the content of basic humanrights through their juridical nature that does not foreclose on thepossibility of an ever-receding approximation of the most univer-sally moral description. That which is most universal-morally co-constitutes the substance and the procedure of basic human rights.It is here that procedures and substance converge.

45 Supra n. 19, p. 202.46 Supra n. 39, p. 121.47 Supra n. 4.

111ESTABLISHING UNIVERSAL HUMAN RIGHTS

Deliberating International Human Rights Content

In 1948, the General Assembly of the United Nations adopted theUniversal Declaration of Human Rights. The preamble to the dec-laration clearly establishes the juridical postulate that there are ba-sic human rights and freedoms which do not owe their granting tonation-state citizenship: ‘Whereas recognition of the inherent dig-nity and of the equal and inalienable rights of all members of thehuman family is the foundation of freedom, justice and peace inthe world.’48 The thirty articles of the resolution are much morespecific and include things like the right to marry and have a fam-ily, the right to leave and return to one’s country, and so on. Thereis not easy international agreement about how to interpret this UNdocument, or how to define human rights on the level of content.Even in 1948, there was not complete international support for thedeclaration. Though the US signed the resolution, the AmericanAnthropological Association issued a statement opposing it basedon the grounds that ‘human rights’ were conceptualized throughoutthe document in terms that reflected only Western Europe andAmerica.49

Human Rights content is also developed in the various Articleson international law (Article 6 on Genocide, for example). TheICC Articles would be considered valid in the context of a moreuniversally valid human rights; namely, that one has freedom inso-far as that freedom can coexist with the freedom of everyone else,which must be intersubjectively recognized and protected. This free-dom involves both the right to mutual recognition and autonomywith respect to one’s relationships with one’s culture AND theright to establish one’s claims with a legal system whose responsi-bility it is to protect the vulnerable. No human rights claim tovalidity can proceed without this test of universal validity. That is,the basic validity of human rights involves being able to standequally and without coercion (or have one’s perspective repre-sented) in the conversation about one’s rights and to be respected(empathetically and in solidarity) in that act.

Universalism in this context is highly sensitive to differences:‘Equal respect for everyone is not limited to those who are like us;it extends to the person of the other in his or her otherness. And

48 United Nations General Assembly (December 10, 1948). Preamble to Resolu-

tion 217 A (III), Universal Doctrine of Human Rights.49 American Anthropological Association Executive Board, Statement of Human

Rights. American Anthropologist 49/4 (1947), pp. 539–543.

112 BARBARA KORTH

solidarity with the other as one of us refers to the flexible ‘‘we’’ of acommunity that resists all substantive determinations and extendsits boundaries even further.’50 The rational content of universalmorality is: ‘based on equal respect for everybody, and on theuniversal solidarity and responsibility of each for all.’51

One cannot be more specific without beginning to foreclose onthe very possibility for universal morality. The openness in terms offurther substance is necessary to its universalism. A necessary andongoing democratic process would enable historical implementationand interpretation of this universal morality, the validity of whichwould always resort in the end to the pragmatic structures of mu-tual understanding, and in the case of basic human rights – onmoral forms of justification (these are the specific pragmatic struc-tures). What ideally would result is a continual revision towarduniversal morality.

It takes cultural forms of life and interpretive worlds to supply thecontext for prevailing moral codes related to the position of human-ity in the world. However, in pluralistic societies, competing reli-gious, philosophical, and metaphysical notions of the self must besubordinated to the moral foundation of a constitutional, interna-tional union. In the latter, there is both neutrality with respect to par-ticular worldviews, and a commitment to their peaceful co-existence(tolerance):

Under the condition of post metaphysical thought, the ethical self-understanding

of the species, which is inscribed in specific traditions and forms of life, no longerprovides the arguments for overruling the claims of a morality presumed to beuniversally accepted... sustained by a prior ethical self-understanding of the species,

which is shared by all moral persons.52

Plainly, though particular content must always be expressed, thejuridical process ensues neutrally with respect to the content. What‘neutrality’ means in Habermasian terms is not perspectiveless, butrather open – open to the other, open to the challenges that othersmight bring to bear on the content, open to being empathetic toeach and every actual/potential/imagined ‘other.’ This is the verysimple content of basic human rights, which converges with itsown necessary procedures; it also allows a continual revision ofmorality, law, and practices of justice.

50 Supra n. 3, pp. xxxv–xxxvi.51 Ibid., pp. xxxv.52 Supra n. 13, p. 40.

113ESTABLISHING UNIVERSAL HUMAN RIGHTS

A BRIEF EXAMPLE: RAPE

In the absence of a cosmopolitan law, the International CriminalTrials for states of the former Yugoslavia (ICTY) and the Interna-tional Criminal Trials for Rwanda (ICTR) contribute to the revi-sion of human rights content globally. The difference in culturalconstructions of both gender and gender crimes (including rape),the varying legal status of gender crimes as prosecutable, and therecent rape-related decisions of the ICTY and the ICTR all makerape an interesting example for working through how content dif-ferences might get negotiated in an international court of law andhow such deliberations relate to sovereign nation-states’ varyingconceptions of human rights. The situation provides a contempo-rary opportunity for exploring issues of content and process wherethe universality of crimes against humanity and genocide are beingforged through the plurality of views on the criminality of rapespecifically.

Adjudicating Rape in International War Crimes Tribunals: HistoricalDevelopments

The Women’s Caucus of the United Nations ICC asserted:

In every legal system of the world, the investigation and prosecution of sexual andgender violence has been undermined by discriminatory and patriarchal proce-

dural and evidentiary rules as well as law enforcement attitudes and practices.Underlying these rules and practices is the prevailing cultural view that while it iscorrect for society to formally outlaw rape and other crimes, governmental

enforcement of these legal prohibitions threatens the prevailing male-dominatedsocial order and the ‘private’ or domestic sphere of relations between men andwomen. This attitude has pervaded the international arena as well, and accountsfor much of the reason international crimes of violence against women have gone

unsanctioned.

Though acknowledged as an offense by the Hague Convention(1907) and the Geneva Conventions and Protocols (1948 and 1949),there was inconsistency in the prosecution of rape during theNuremburg and Tokyo tribunals.53 The International Military Tri-bunal in Nuremburg failed to prosecute rape, but the Tokyo tribu-nal did find rape to be a prosecutable offense. Though evidence forrape was available for both tribunals, the Nuremburg lawyers didnot provide the details of such evidence to the court on the

53 Supra n. 24.

114 BARBARA KORTH

grounds that sexual atrocities were unspeakable – crimes whose si-lence resulted in their legal unacknowledgment.54 In the Tokyo tri-bunals, the court learned that Japanese military leaders establishedrape camps throughout Asia, the most well-known of which wasthe Nanjing camp where it is guessed that nearly 20,000 femaleswere raped.55 The Tokyo tribunal prosecuted this criminal activityas a violation of the laws and customs of war, but not as a crimeagainst humanity or genocide. Through the ICTR and the ICTY,rape indictments have been raised under all four categories of pros-ecutable crime: violations of the laws and customs of war, gravebreaches of the Geneva Convention of 1949, crimes against human-ity, and genocide.

An indictment of rape was prosecuted in the Rwanda tribunalas genocide in the case against Akayesu.56 The original indictmentagainst Akayesu did not list rape as part of the genocide charge.The amended Chamber Judgment argued that rape could be prose-cuted as genocide: ‘in the same way as any other act [of seriousharm] as long as the rapes were committed with the specific intentto destroy, in whole and in part, a particular group, targeted assuch’ [italics added]. A guilty verdict was upheld by an AppealsChamber in 2001.57 According to the judgment, raping females wasconsidered part of Akayesu’s genocidal intentions toward the largerTutsi ethnic group because it forced the pregnancies of bi-ethnicbabies and seriously limited, for a time, the births of Tutsi babies.The United Nations estimated that over a quarter of a millionwomen were raped during the Rwandan war.58

The ICTY delivered a landmark decision related to sexualcrimes that was partially possible as an effect of the precedingICTR decision against Akayesu. The ICTY found three male Bos-nian Serb soldiers guilty of rape and sexual enslavement as crimesagainst humanity and war crimes. This marked the first time ininternational criminal tribunals that sexual violence against womenwas the sole indictment in any of the four categories. In 2001, TrialChamber II of the ICTY reached a guilty verdict (that was upheld

54 Brownmiller, Susan. Against Our Will: Men, Women and Rape (London:

Bantam Books, 1975).55 I. Chang, The Rape of Nanjing (London: Penguin, 1998).56 Prosecutor vs Akayesu; Case No. ICTR-96-4-T, September 2, 1998.57 Foundation Hirondelle, ICTR, ‘Appeals Court Confirms Judgment on Former

Mayor’ (June 1, 2001). Accessed June 2001 at http://www.hirondelle.org.58 Tina Rosenberg, Editorial Observer; New Punishment for an Ancient War

Crime, 5 Apr. 1998, at § 4, 14.

115ESTABLISHING UNIVERSAL HUMAN RIGHTS

in appeals court in 2002).59 The verdict in Prosecutor vs. Kunaracheld rape to be a crime against humanity and a war crime and itexpanded the definition of slavery to include sexual slavery.60

Clearly, the ICTY and the ICTR are setting precedents withrespect to the international adjudication of rape during times ofwar.61

According to feminist scholars,62 the Akaseyu and Kunarac deci-sions had the following important effects on international law: (1)brought the prosecution of sexual crimes against women to the fore-front, (2) broadened the potential enforcement of international pro-tections for civilians, (3) recognized that women are equal to men inthe human community, and (4) historically established precedencefor prosecuting sexually related crimes in international court.

What this history reveals is a move toward a more universallymoral perspective with respect to martial rape and in terms of iden-tifying rape as a violation of basic human rights more generally con-ceived. With the Nuremburg Tribunal, the decision not to prosecuterape denied women the basic right of equal access to legal recoursewith respect to sexual/gender crimes and it did not take into ac-count how this decision might affect them. Such a procedural limi-tation was coupled with a limitation in content – rape and othergender crimes were not established as clear violations of humanrights on the international level. The Tokyo decision to prosecuterape as a violation of the customs of war also did not establish rapeas a violation of basic human rights.63 In the nineties, several femi-nist groups critically revisited the decision and made related, belatedrequests of the Japanese government which have not been met.64

Though rape has long been acknowledged in western covenants as ahumanitarian violation,65 justice had no opportunity for pursuit

59 See Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic (Focacase), Appeals Chamber Judgement, June 12, 2002, IT-96-23 and IT-96-23/1.

60 J. McHenry, ‘‘The Prosecution of Rape Under International Law’’, Vanderbiltof TransnationalLaw 35 (2002) pp. 1269–1311.

61 Supra n. 56; Prosecutor v. Tadic; Prosecutor v. Delalic, et al., IT-96-21-A,November 16, 1998; Prosecutor v. Anto Furundzija, Judgment, December 10, 1998;Prosecutor v. Blaskic, IT-95-14, Judgement, March 3, 2000; Prosecutor v. Kvocka et

al., Judgement, IT-98-30-T, November 2, 2001; supra n. 59.62 Supra n. 24.63 Supra n. 54, p. 53.64 Asian Women’s Human Rights Council, Tokyo, 1993, Japan. Public hearing of

complaints of sexual crimes against Asian women by Japanese soldiers.65 T. Meron, ‘‘Rape as a Crime Under International Humanitarian Law’’,

American Journal of International Law 83 (1993), p. 424.

116 BARBARA KORTH

except through international prosecution and, until recently, prose-cution fell short of its own possibilities. This disjuncture betweenwhat aligns with the constitution of basic human rights and whatactually gets practiced in positive law illustrates what Dryjyk re-ferred to as defective human rights conceptions.

Adjudicating Rape in International War Crimes Tribunals:Establishing Grounds for Validity

These recent ICTR and ICTY decisions explore the validity of adju-dicating rape as genocide and as a crime against humanity in inter-national law.66 The differences between these two Chamberdecisions help to secure content-specific designations for the distinc-tion between genocide and crimes against humanity, but taken to-gether provide sound support for thinking of rape as a violation ofbasic human rights and for the supravalidity of these basic rights.All this contrasts with longstanding practices allowing for martialrape, specifically through such ideas as these: rape is just a necessaryside-effect of war, acceptable booty for soldiers, an apt reward for aman fighting with his life, and so on.

Cultural and Cosmopolitan Views of Rape: Is Rape a Violation ofHuman Rights?

According to Rhonda Copelan,67

Rape drew broad attention, at the outset [of the Rwandan cases], however, more

because it was a genocidal or ethnic attack, than because it was an attack on

66 A few notable proponents include: C. MacKinnon, ‘‘Rape, Genocide, andWomen’s Human Rights’’, Harvard Women’s Law Journal 17/5 (1994); T. Salzman,‘‘Rape Camps as a Means of Ethnic Cleansing: Religious, Cultural, and Ethical

Responses to Rape Victims in the Former Yugoslavia,’’ Human Rights Quarterly 20(1998), p. 348; D. Rejali, ‘‘After Feminist Analyses of Bosnian Violence and CynthiaEnloe, All the Men Are in the Militias, All the Women are Victims’’, in Ann

Lorentzen and Jennifer Turpin, eds. The Woman and War Reader (1998) New York,New York: New York University Press; S. Fisher, ‘‘Occupation of the Womb:Forced Impregnation as Genocide’’, Duke Law Journal, 46 (1996), p. 91. The chal-lengers include R. Copelon, ‘‘Surfacing Gender: Reconceptualizing Crimes Against

Women in Time of War’’ in Alexandra Stiglmayer, ed., The War against Women inBosnia-Herzegovina (Omaha: University of Nebraska Press, 1996); A. Neier, WarCrimes: Brutality, Genocide, Terror and the Struggle for Justice, (New York: Random

House, 1998).67 Lawyer involved in civil indictments against Radovan Karadzic in the U.S.

Bosnian military rapes.

117ESTABLISHING UNIVERSAL HUMAN RIGHTS

women...like all arguments that deflect attention from the essential need torecognize women as subjects, it had a potential regressive aspect in suggesting that

this use of rape was qualitatively different from the traditional use of women asbooty...or as the reward for the penultimate expression of the norm of masculin-ity...68

Copelan argued that the Rwandan decision did not clearly establishrape as a violation of basic human rights, but rather acknowledgedit as a potential tool for genocide – genocide being the violation ofbasic human rights. Her point suggests that the decision leaves adisjuncture between (a) the culturally pervasive practices of genderinequality which are coupled with a lag in women’s rights in gen-eral which would assert that women (and gender and sexual minor-ities) should be treated as human qua human to the same extent asmen; and: (b) the inalienable right of all humans to self-dignity,equality, autonomy, and mutual recognition – all of which arebreached in gender crimes.

Judge Pillay (of the Trial Chamber for the ICTR) said of thejudgment against Akayesu,

From time immemorial, rape has been regarded as spoils of war. Now it will be

considered a war crime. We want to send out a strong signal that rape is no long-er a trophy of war.69

Judge Pillay also commented that having women involved in theprosecution of war crimes, crimes against humanity, and genocidewill make it more likely that gender violence will be indicted. JudgePillay was arguing that the culturally contingent acceptability ofrape in war is now officially challenged and that it seems to havetaken the actual judicial inclusion of women to get this perspectivefully posited in legal decisions. The question that arises betweenthese two interpretations of the Akaseyu decision is whether or notwartime rape (martial rape) is considered a violation of basichuman rights on its own.

From a Habermasian perspective, cosmopolitan law cannot val-idly promote the kind of gender inequality described in any con-crete cultural willingness to refrain from justice for gender crimesin the legal sense as we saw in the Nuremburg trials. There can beno universally moral justification for leaving rape and other gendercrimes outside the purview of prosecutable international law. Toavoid such prosecution is, in the first place, a violation of human

68 Supra n. 24.69 Interview, quoted by Bill Berkeley, ‘Judgment Day’, Washington Post, October

11, 1998, Sunday Magazine, p. 10.

118 BARBARA KORTH

rights because it limits the woman’s right to claim herself simulta-neously as a woman and as the legitimate bearer of human rightsin the presence of the law.70 It is on this point that Judge Pillaysays the Akaseyu decision makes a contribution in the legalaffirmation of basic human rights.

Also, for Habermas, gender crimes like rape, sexual enslavementand forced impregnation violate valid human rights (suprapositivejuridical rights as human qua human) and, therefore, cannot beavoided on a substantive level. Gross argued that the intuitive sta-tus of rape as a violation of human rights led the way to its beingprosecuted as such.71 Prosecution actualizes the inherently juridicalnature of human rights; protecting them. This is the point thatCopelan argued has not been settled by the Akaseyu decision.

Because ‘every legal system is also the expression of a particularform of life and not merely a reflection of the universal content ofbasic rights,’72 the shift from the Nuremberg Tribunal where therewas apologetically no justice brought to bear on gender crimes tothe current tribunals, where there is prosecution of gender crimes,can be related also to cultural shifts. In particular it can be usefullyrelated to shifts toward a universally more defensible understandingof ‘human’ in its international pressure for reaching consensus.Card argued that: ‘Rape is the cross-cultural language of maledomination (that is domination by males; it can also be dominationof males).’73

Feminists have pointed out that a deeply patriarchal view of rape– traditionally defined as the penis penetrating the vagina – is sinequo non the same definition for sex.74 This point is relevant becausethe culturally contingent moral perspective on rape will only meetuniversal validity if its very definition can be freely accepted as legit-imate by women and others who might need both protection fromrape and the restoration of social respect. A definition that does notadequately distinguish between sex and rape would not suffice.

70 I will treat rape as largely an act that victimizes women, but we know that males

are also victimized and that male rape faces taboos associated with patriarchy,misogyny and homophobia.

71 O. Gross, ‘‘The Grave Breaches System and the Armed Conflict in the FormerYugoslavia’’, Michigan Journal of International Law 16 (1995), p. 783.

72 J. Habermas, The Inclusion of the Other: Studies in Political Theory (Cam-

bridge, MA: MIT Press, 1998), p. 217.73 C. Card ‘‘Rape as a Weapon of War’’, Hypatia 11 (1996), p. 4.74 F. Aolain, ‘‘Radical Rules: The Effects of Evidential and Procedural Rules on

the Regulation of Sexual Violence in War’’, Albany Law Review 60 (1999),

pp. 883–910.

119ESTABLISHING UNIVERSAL HUMAN RIGHTS

To move from positive law contingent on cultural understand-ings of rape and gender toward a more universally moral under-standing of rape as a violation of basic human rights, people wouldhave to engage in trans-cultural dialogue. If conceived as a breachof human rights, rape would not be debatably acceptable underconditions of marriage for example. There would not be conditionsof state or of war that would make rape justifiable if it is acceptedas a violation in human rights. The international acceptance ofrape as a human rights violation would have the potential of mov-ing nation-state moral views of rape toward universal morality, butthese need not be fully aligned for there to be democratic progressat the international level, as long as deliberation procedures remainopen at both the international and national levels. This is not animperialistic view of morality but a substantively revisionary,dialogic and basic view of morality.

An interpretation of Habermas would hold that rape can be dis-cussed as human rights content by examining it with respect to thetwo factors of mutual autonomy and mutual respect/dignity. Rape(inclusive of the varying ways it is defined) disturbs a person’sautonomy (capacity to freely assent), and it disturbs a person’scapacity for social respect and physical/psychological dignity. Thus,rape violates a person qua person, not a person as a citizen of thisor that state. Not all nation-states would agree with this, and sothe international dialogue produces two potentials: (1) the opportu-nity to reveal a defective conception of human rights,75 and (2) thejudicial opportunity to collectively explore the duality of autonomyand empathy/respect/dignity through the courts. Both wouldcontribute to becoming more universally moral.

Securing Human Rights Recognition Through InternationalProsecution

To argue that rape represents a violation of basic human rights isto simultaneously argue its juridical value. International (preferablycosmopolitan) prosecutions help to establish human rights contentin a legally-specific way – without any other global mechanism forthe execution of human rights or the negotiation of human rightsconceptions, the war crimes tribunals and the ICC are the switch-ing place for the conversation among diverse moral perspectives.With the Rome Statutes (guiding the ICC), gender specific crimes

75 Supra n. 31, pp. 30–42.

120 BARBARA KORTH

are now directly indictable under two of the three criminal catego-ries (crimes against humanity and war crimes). Moreover, the defi-nition of gender specific crimes was expanded through two statutes:

� Article 7 listing crimes against humanity, includes ‘rape, sex-ual slavery, enforced prostitution, forced pregnancy, enforcedsterilization, or any other form of sexual violence of compa-rable gravity,’76 and

� Article 8, describing war crimes, adds ‘any other form ofsexual violence also constituting a grave breach of the GenevaConventions’77 to the list.

No longer is martial rape – considered either unspeakable, benign78

or profit.The ICTY has been able to provide some greater specificity with

respect to rape as international crime. The statutes of the tribunaladdress rape in the following ways:

� Article 2 gives the authority to prosecute cases whichrepresent ‘grave breaches’ to the Geneva Convention by con-sidering rape to constitute torture and inhuman treatment.79

� Article 4 involves prosecuting cases of genocide, and followingon the ICTR decision, acknowledges sexual violence as ameans of securing genocide80: ‘This provision is legal acknowl-edgment that sexual violence in war serves a functional purposein destroying an opponent’s culture by defiling an essentialcomponent of society, its women (as symbolic of cultural andbodily integrity) and its childbearers (as its future).’81

� Article 5 supports the position that rape constitutes a crimeagainst humanity.82

The ICTY went so far as to say while elements like force giveevidence of rape, the unifying feature of rape across several nationallegal systems is the: ‘basic principle of penalizing violations of sexualautonomy.’83

76 Article 7, Rome Statute of the International Criminal Court (2002).77 Article 8. ibid.78 Supra n. 73.79 Supra n. 30, at art. 2(c).80 Supra n. 30, at art. 4(2)(b).81 Supra n. 74, p. 891.82 Supra n. 30, at art. 5(g).83 Supra n. 59, at para 129.

121ESTABLISHING UNIVERSAL HUMAN RIGHTS

Aolain pointed out that the definition of rape has been left openin international law which could allow for maximum prosecutionagainst a variety of acts that violate people through sexual defile-ment, thus not limiting rape to penetration.84 This speaks to theearlier point about the relationship between various cultural con-structions of rape and international conceptions of rape as a viola-tion of basic human rights. Moreover, the international issue ofmartial rape is also distinguished from domestic issues of rape as amatter of content. This allows for the evolving and particular nat-ure of national content to neither supercede nor impede the inter-national definitions, while also allowing for tolerance of differenceat the national level. If Drydyk is taken seriously, the example ofrape could be used to illustrate the way cultural conceptions of hu-man rights fall short. Drydyk’s position would also indicate opti-mism with respect to an international conversation on rape as aviolation of human rights.85

CONCLUSION: A HABERMASIAN CLARIFICATION OF HUMAN RIGHTS

AND THE NEED FOR COSMOPOLITAN LAW IN THE ADJUDICATION OF

WAR CRIMES

Though Habermas is most appropriately examined through proce-dural issues of law rather than substantive issues of law, this paperhas taken a close look at the possibility for substantive assertionsthat might fit the requirements of a universal morality appropriatefor, and in need of, cosmopolitan law. At the start of the paper,the needs for cosmopolitan law were identified both philosophicallyand practically. This analysis indicated the way in which cosmopol-itan law derives from the suprapositive validity of basic humanrights – those which are substantively and procedurally not limitedto their constitution at the nation-state level. Habermas argued thatbasic human rights are juridical in nature not merely moral fromthe culturally contextual point of view. This juridical nature pointssimultaneously toward universally moral validity criteria. The samecriteria that specify a universally appropriate set of judicial proce-dures mark the substantive core of any definition of basic humanrights. That is, any universally just law of human rights cannotsubstantively contradict or limit the procedural safeguards. The

84 Supra n. 74, p. 60.85 Supra n. 31, pp. 30–42.

122 BARBARA KORTH

positive side of this is that basic human rights must instantiate theUniversalization Principle on the level of content. This means thatat least two aspects must coincide: equal respect/dignity and equalrights/participation. One aspect secures justice and the other aspectsecures empathy and solidarity. These two aspects produce a uni-versal morality that conjoins content with procedures. The open-ness is part of both the content and the procedures and, for thisreason, must be continually checked through communicative inter-rogation. Further content for basic human rights is continuallybeing revised with the possible move toward increased universalmorality.

Cosmopolitan law can provide the necessary structure for adju-dicating human rights violations internationally. However, at pres-ent, decisions rendered in international war crimes tribunals seemto offer the most hope for protecting and articulating the suprapos-itive validity of basic human rights. The judicial response to rape ininternational war provides an interesting example for testing outthe validity of a universal morality with respect to specific content.The link between content and procedure shows up as violations inboth equal respect/dignity (tolerance and mutual recognition aremain characteristics of this) and equal rights/participation (open-ness and egalitarianism are the main characteristics of this).

Faculty of EducationIndiana University201 North Rose Ave.Bloomington, IN 47405USAE-mail: bkorth@indiana.edu

123ESTABLISHING UNIVERSAL HUMAN RIGHTS