The Rome Statute: Global Justice and the Asymmetries of Recognition

Abstract:Given the emergence of challenges that are increasingly global in nature, and given the irreducible contingency of state borders, it would seem that justice must become global justice: justice that takes shape through a legal order that holds for all of humanity and everywhere. But is justice for all and everywhere possible? At issue, in this question, is not a rearguard defense of the state and state law. Instead, the question concerns the globality of global law and global justice. Is any legal order possible, global or otherwise, that organizes itself as an inside without an outside, that is, which is all-inclusive? A prima facie candidate for such an order is the Rome Statute, which established the International Criminal Court to investigate and prosecute genocide, crimes against humanity, war crimes, and the crime of aggression. Yet careful consideration of the scope of the Rome Statute shows that it cannot realize global justice as criminal justice without excluding other forms of justice, for example restorative justice, thereby both recognizing and misrecognizing the victims of the crimes the International Criminal Court is called on to investigate and prosecute. Humanity is inside and outside the Rome Statute's invocation of 'the international community as a whole.' Because it organizes itself as an inside vis-à-vis an outside, the Rome Statute, like all global law and justice, is local law and justice. If, as this article argues, the inside/outside contrast is constitutive for any imaginable legal order, it also draws on the asymmetries of processes of collective recognition to articulate a concept of global justice that is neither universalist nor particularist, neither all-encompassing nor relativistic.