Abolitions, Domestic and International

This book fills a major gap in the scholarly literature concerning international criminal law, comparative criminal law, and human rights law. The principle of legality (non-retroactivity of crimes and punishments and related doctrines) is fundamental to criminal law and human rights law. Yet this was the first book-length study of the status of legality in international law - in international criminal law, international human rights law, and international humanitarian law. This was also the first book to survey legality/non-retroactivity in all national constitutions, developing the patterns of implementation of legality in the various legal systems such as Common Law, Civil Law, Islamic Law, and Asian Law around the world. This is a necessary book for any scholar, practitioner, and library in the area of international, criminal, comparative, human rights, or international humanitarian law.

The jurisdiction of the International Criminal Court (hereinafter: ICC) is limited to the most serious crimes of concern to the entire international community that threaten security, peace, and well-being of the world. This article argues that serious (transitional) economic offences should belong in this group. Ignoring these crimes, which often represent economic violence characteristic of transitional and post-conflict countries, can lead to another cycle of armed conflict and/or physical violence as well as to internal and external insecurity. Responses to globalization are having a significant effect on international law and institutions with a view to protecting economic and social human rights, human security, and human dignity. Sometimes, as in the case of Croatia, national states are not able to and/or unwilling to prosecute serious and systemic economic crimes, which in turn undermines individual and collective security. The same could be said for international criminal law. By ignoring these crimes and violations – unlike what international human rights law, supranational criminology, and transitional justice does – the core international criminal law no longer responds to the needs of societies and individuals. The Rechtsgut in need of protection by prosecuting serious economic crimes that fulfill the threshold of core crimes on an international level is comprised of the “security, peace and well-being of the world.” Therefore, one could argue that the International Criminal Court’s possible involvement in economic violence does have a legal base, without needing to amend the ICC’s Statute (hereinafter: ICCSt). Since one must be aware of the diversity that exists as to the criteria for international criminalization, this article is based on broader grounds in order to argue in favor of international criminalization of these economic crimes. The article therefore emphasizes the importance of connecting narratives of international criminal law, with discourses on international human rights law (based on Art. 21 of the ICCSt), human security, (supranational) criminology, transitional justice, and (economic) criminal law. In the line of (human) security discourse, this approach seeks to find arguments as to whether or not it is necessary to begin prosecuting serious (transitional) economic offences as crimes under international law. First, this article gives a brief overview of the failed experiment in Croatia concerning the prosecution of transitional economic crimes that served as incentive, based on the ICC’s complementarity principle.

International Criminal Justice is a controversial concept, and there is a burgeoning body of literature on its exact contours. Understood broadly, the term “international criminal justice” covers a broad category, integrating international criminal law (ICL) within an overarching interdisciplinary enterprise also “incorporating philosophical, historical, political and international relations, sociological, anthropological and criminological perspectives” (Roberts, 2007). International criminal law consists, at its core, of a combination of criminal law and public international law principles. The idea of individual criminal responsibility and the concept of prosecuting an individual for a specific (macrocriminal) act are derived from criminal law, while the classical (Nuremberg) offenses form part of (public) international law and thus the respective conduct is directly punishable under ICL (principle of direct individual criminal responsibility in public international law). The dualistic base of international criminal law is also reflected in the reading of the mandates of the international criminal tribunals; one can either take a “security, peace, and human rights”–oriented approach or a “criminal justice”–oriented approach, either of which may entail a paradoxical goal or purpose ambiguity of international criminal law. In any case, the strong grounding in criminal law, together with the actual enforcement of international criminal law by way of international criminal proceedings and trials, converts international criminal law into criminal law on a supranational level and thus entails the full application of the well-known principles of liberal, post-enlightenment criminal law, in particular the principles of legality, culpability, and fairness. These principles constitute the minimum standard of any criminal justice system based on the rule of law and thus must also apply in an international criminal justice system. The adoption of the Rome Statute of the International Criminal Court (ICC) in 1998 and the effective establishment of the Court in 2002 have led to an institutionalization of international criminal law, turning the page on ad hoc imposition in favor of a treaty-based universal system. In addition, the Rome Statute provides for the first codification of international criminal law, with a potentially universal reach. Therewith, international criminal law was not only united into a single penal system of the international community, but it was also extended beyond its fundamental core areas of substantive and procedural law into other branches of criminal law (law of sanctions, enforcement of sentences, and judicial assistance).

International criminal law is a carceral system, which responds to mass atrocities by holding some individuals criminally responsible for these events and then, generally, imprisoning those individuals. I ask what alternative responses might be envisaged, and if we can build a carceral abolitionist movement for international criminal law. Such a movement would refuse imprisonment and policing as the main responses to mass atrocity, and instead would seek to understand the social causes and conditions that cause such mass atrocity, and also how (and why) criminal law has become the preeminent ‘legitimate hand of justice’. In this article, I attempt to bring into conversation two particular intellectual movements: the collective scholarship and praxis of domestic carceral abolition movements; and those critical scholars of international criminal law who have already set out some of the limits and possibilities of the field. I set out the structural conditions of international criminal law, particularly its ideological grounding in neoliberalism and its relationships to race, global capital and colonialism and imperialism, which result in a legal system that criminalizes some and exonerates others. I then particularly examine some tools that already exist for building an abolition movement for international criminal law. These include the defence of duress, transformative reparations and the role of defence lawyers. These tools are admittedly part of the carceral system, and therefore cannot be the key to an abolition movement for international criminal law. However, they may assist us in the short or medium term as we imagine and work towards a better world without the need for a carceral system of international criminal law that relies on police and prisons.

In 1832, a global cholera pandemic reached US shores.Like COVID-19, cholera was a wholly new disease in the United States (although considerably deadlier), and it was, like the novel coronavirus, a poorly understood one that disproportionately affected immigrants and African Americans. 1 The cholera pandemic began immediately following Nat Turner's rebellion, which had triggered a wave of punitive laws against Black Americans.The early 1830s was, in other words, a time of brutal devastation for the African American community, particularly in the South.How, we might wonder, when faced with horrific violence, systemic injustice, and a descending global pandemic, could an enslaved fifteen-year-old Frederick Douglass do anything but despair?Crucially, he did not.Instead, Douglass's understanding of Nat Turner's murder, the racist legal retribution that followed, and the horrors wrought by cholera appear in the context of his awakening to the word abolition.Having heard the word whispered angrily by slaveholders, Douglass (1855: 165) turned futilely to a dictionar y before gleaning from a newspaper, the Baltimore American, an understanding of the talismanic term born of the political and health crises of his time: "The insurrection of Nathaniel Turner had been quelled," he writes, "but the alarm and terror had not subsided.The cholera was on its way, and the thought was present, that God was angry with the white people because of their slaveholding wickedness, and, therefore, his judgments were abroad in the land.It was impossible for me not to hope much from the abolition movement, when I saw it supported by the Almighty, and armed with DEATH!" Nearly two centuries later, we find ourselves in strangely

The first session offered an external, i.e. a non-‘international criminal law’ perspective on the Conference topic. Its purpose was to consider whether non-international criminal law mechanisms at either the international or the national level could provide some guidance on how to address corporate involvement in international crimes. The first paper, presented by Anita Ramasastry,1 provided an overview of the involvement of corporations in international crimes. Larissa van den Herik2 then outlined the accountability mechanisms for corporate violations of human rights under international law, and Katherine Gallagher3 presented a paper on the Alien Tort Claims Act (ATCA) litigation in the United States and its possible relevance for international criminal law. Finally, Roland Hefendehl4 elaborated on a domestic, i.e. the German criminal law approach to white-collar crime. The panel was chaired by George P. Fletcher.5 After the presentation of the papers, the general discussion focused on the ATCA and its possible interrelation with international criminal law. In a reply to a question on whether there is opposition to the ATCA, Katherine Gallagher explained that corporations take ATCA cases seriously due in large part to fear of damage to their reputations. Such cases are vigorously litigated, with defendants invoking various legal and policy arguments for why these cases should be dismissed. She referred in particular to the damages cases against companies who allegedly aided and abetted serious human rights violations through their operations in Apartheid South Africa, which are currently being heard by a US court.6 According to Gallagher, there has been a small but measurable impact of ATCA cases on corporate behaviour. Moreover, ATCA cases were of tremendous importance for the victims in providing a forum in which the claims could be raised and having courts consider — and in a growing number of cases affirm — that what had happened to the victims constituted a legal wrongdoing and a violation of international law. Nevertheless, Gallagher considers that the record remains mixed, when cases are judged in the traditional sense. She explained that only a few cases have reached the trial phase, due to dismissals on jurisdictional grounds or because of settlements during the pre-trial stage, by which companies mitigate the damage that a public trial would have on the public’s perception of the corporation. In relation to the question of whether and to what extent public attention is able to influence corporate behaviour, Andrew Clapham7 raised the example of Royal Dutch Shell and Sudan: in 2001, Shell announced that it would no longer supply jet fuel to the region after concentrated media attention on the situation in Darfur, Sudan.

Introduction The assertion of criminal jurisdiction over a person is amongst the most coercive activities any society can undertake. Punishing a person involves conduct towards them which requires a deprivation of some form of their liberty or a setting-back of their property interests. Such a deprivation of liberty or property requires justification. Furthermore, criminal law is not, in itself, a good or a bad thing. It is a tool, designed to achieve certain ends. Some of those ends may be better pursued by means other than prosecutions. It has been suggested by some that the justifications for punishment may differ, or at least be differently interpreted, between international criminal law and domestic criminal law. It is true that the general situations in which international criminal law is invoked are those of mass criminality, which are not the normal case in domestic criminal law enforcement. In addition, certain additional aims for international criminal law tend to be grafted onto those which are postulated for domestic systems of criminal law. These include the telling of the history of a conflict, distinguishing individual from group responsibility, reconciling societies and capacity building in domestic judicial systems. It is also true that international society is not the same as domestic society. Nonetheless, much of the implementation of international criminal law is intended to be at the domestic level, therefore it is questionable whether the objectives of punishment ought to differ that significantly between international and municipal criminal law.

In international law doctrine carried on extensive talking and still it is a actual subject, if the individual is liable of responsability and, implied, of sanction for international crimes. Before to reveal some aspects of natural persons responsability for international crimes a couple of clarifications is required. Thus, we recall that the first author which use the term international criminal law was Jeremy Bentham, who distinguished between the criminal law of the community of states and the criminal law of a state. Over time, legal doctrine has extrapolated the concept of legal relationships with an international element, making the distinction between public international law and private international law. If criminal law is a branch of public law, then international criminal law becomes a sub-branch of international law, regulating criminal legal relationships with an international element. In other words, referring to private international law, we specify that it represents the totality of legal norms that resolve conflicts of laws or conflicts of jurisdiction and those regarding the legal status of the foreign national. In this context, the international element appears as a factual circumstance related to a legal relationship due to which this relationship is related to several legal systems (or laws belonging to different countries). With regard to international criminal law, we specify that this is a branch of public international law and designates the set of legal norms stipulated in various conventions and treaties by which states, in their capacity as subjects of law, order the repression of illicit acts that infringe fundamental rights of the international community. In other words, international criminal law consists of rules of general international law that govern the criminal liability of natural persons, individuals, for acts that harm international public order and constitute crimes against humanity.

International criminal law is a relatively young discipline and draws on both international law and criminal law theories. Arguably, the absence of a Dogmatik may prevent the formation of an authentic system of international criminal law. However, the author shows there is room to build a proper theory of criminal liability in international criminal law. He illustrates, through examples and analogies drawn from his own experience, how practice can be usefully guided and interpreted through the lens of legal scholarship. In paying tribute to Antonio Cassese, he argues in favour of a role for scholars and emphasizes the contribution of ‘good’ teaching and open minded research in constructing a system of international criminal law.

Previous articleNext article No AccessA Defense of International Criminal Law*Andrew Altman and Christopher Heath WellmanAndrew Altman Search for more articles by this author and Christopher Heath Wellman Search for more articles by this author PDFPDF PLUSFull Text Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by Ethics Volume 115, Number 1October 2004 Article DOIhttps://doi.org/10.1086/422895 Views: 171Total views on this site Citations: 21Citations are reported from Crossref © 2004 by The University of Chicago. All rights reserved.PDF download Crossref reports the following articles citing this article:Andrew Jason Cohen What liberals should tolerate internationally, Critical Review of International Social and Political Philosophy 24, no.11 (May 2019): 64–86.https://doi.org/10.1080/13698230.2019.1616880Steven Ratner International law and political philosophy: Uncovering new linkages, Philosophy Compass 14, no.22 (Dec 2018): e12564.https://doi.org/10.1111/phc3.12564Christopher Soler What Is Required to Intrude into the Sovereignty of a Defaulting State in Order to Investigate and Prosecute Core Crimes?, (Sep 2019): 59–87.https://doi.org/10.1007/978-94-6265-335-1_5Zachary Hoskins May, Larry, (Jul 2017): 1–4.https://doi.org/10.1007/978-94-007-6730-0_242-1Catriona McKinnon Endangering humanity: an international crime?, Canadian Journal of Philosophy 47, no.2-32-3 (Jan 2020): 395–415.https://doi.org/10.1080/00455091.2017.1280381Zachary Hoskins Punishment, Analysis (Mar 2016): anw022.https://doi.org/10.1093/analys/anw022Lars Waldorf Inhumanity’s law: Crimes against humanity, RtoP and South Sudan, International Politics 53, no.11 (Dec 2015): 49–66.https://doi.org/10.1057/ip.2015.37Shlomit Wallerstein Delegation of Powers and Authority in International Criminal Law, Criminal Law and Philosophy 9, no.11 (Feb 2013): 123–140.https://doi.org/10.1007/s11572-013-9203-3J. B. Delston The criminalization of money laundering and terrorism in global contexts: a hybrid solution, Journal of Global Ethics 10, no.33 (Nov 2014): 326–338.https://doi.org/10.1080/17449626.2014.971854Harmen van der Wilt Crimes against humanity: a category hors concours in (international) criminal law?, (Feb 2014): 25–41.https://doi.org/10.1017/CBO9781107257139.003EAMON ALOYO Improving global accountability: The ICC and nonviolent crimes against humanity, Global Constitutionalism 2, no.33 (Sep 2013): 498–530.https://doi.org/10.1017/S2045381713000178Kai Ambos Punishment Without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution Towards a Consistent Theory of International Criminal Law, SSRN Electronic Journal (Jan 2013).https://doi.org/10.2139/ssrn.2274868Christopher Heath Wellman The Rights Forfeiture Theory of Punishment, Ethics 122, no.22 (Jul 2015): 371–393.https://doi.org/10.1086/663791MARKUS D. DUBBER Common Civility: The Culture of Alegality in International Criminal Law, Leiden Journal of International Law 24, no.44 (Nov 2011): 923–936.https://doi.org/10.1017/S0922156511000434Soraya Nour, Klaus Schlichte, Benjamin Herborth, Andreas Niederberger, Peter Niesen, Anna Goppel, Thomas Seibert Politische Gestalt und politische Konsequenzen, (Jan 2011): 256–303.https://doi.org/10.1007/978-3-476-05327-5_6Massimo Renzo A Criticism of the International Harm Principle, Criminal Law and Philosophy 4, no.33 (Aug 2010): 267–282.https://doi.org/10.1007/s11572-010-9098-1Kirsten J Fisher The Distinct Character of International Crime: Theorizing the Domain, Contemporary Political Theory 8, no.11 (Feb 2009): 44–67.https://doi.org/10.1057/cpt.2008.21Christopher Heath Wellman A Theory of Secession, 18 (Jul 2009).https://doi.org/10.1017/CBO9780511499265Aaron Fichtelberg Crimes beyond justice? Retributivism and war crimes, Criminal Justice Ethics 24, no.11 (Jan 2005): 31–46.https://doi.org/10.1080/0731129X.2005.9992178Jovana Davidovic, Larry May, Elizabeth Edenberg International Criminal Court, the Trust Fund for Victims, and Victim Participation, (): 217–243.https://doi.org/10.1017/CBO9781139628594.008Kristen Hessler, Larry May, Zach Hoskins State Sovereignty as an Obstacle to International Criminal Law, (): 39–57.https://doi.org/10.1017/CBO9780511642265.003

International courts serve an important function in finding and interpreting existing law, but as noted already forty years ago the focal problem of international courts is that: “the borderlines between interpretation of existing law and the making of new law are inevitably fluid.” Particularly in interpreting customary international law the courts face situations which call for innovative methods in determining the definition and the scope of the law. International criminal law has only recently grown more coherently codified, but still bears much on customary law elements, unlike some other fields of public international law, in which rules have been quite thoroughly codified. Additionally, in criminal law issues such as foreseeability, and non-retroactivity, to mention a few, ought to be given a high credence, or the reason that it is the liberty of an individual that is at stake. In discovering and applying customary international law, international criminal courts are confronted with the balancing exercise between following positivist approach – attaching itself to law as it is, as enacted or adopted by an authority, and may lead to an undesired, even unjust outcome in criminal trials – and natural law approach – arising from inherent rights and duties regardless of their formal recognition, and may risk the violation of the principle of legality. Principle of legality determines the limits of the law-making process and encompasses norms that legal rules must adhere to, such as clarity, promulgation and non-retroactivity.The question arises, how can the courts preserve the principle of legality, and especially the prohibition of retroactive effect of law, in interpreting – and in formulating – customary international law in a progressive manner. Should the principle of legality be applied liberally in order to bring perpetrators to justice, or is strict application necessary in criminal courts, even at the cost of some impunity? This paper analyses how these two aspects should be balanced and reconciled against one another in discovering, interpreting, and applying customary international law, with reflections on theories of H.L.A. Hart and Lon Fuller – the two influential proponents of modern positivist and natural legal thought, respectively – and recent case-law of international courts in fields of international criminal law and human rights law. Also, Hart‟s primary and secondary rules, and rule of recognition are considered in the determination of what may count as customary international law. First, I consider the principle of legality and its importance in the formation of law – with emphasis on customary international law, followed analysis of its link to morality and the concepts of lex lata and lex ferenda. I have included a brief discussion on the application of primary and secondary rules and rule of recognition in the formation of (customary) international law. Finally, I analyze selected recent court decisions which deal with international crimes and the principle of legality, with the aim of reflecting on the above issues.

International courts serve an important function in finding and interpreting existing law, but as noted already forty years ago the focal problem of international courts is that: “the borderlines between interpretation of existing law and the making of new law are inevitably fluid.” Particularly in interpreting customary international law the courts face situations which call for innovative methods in determining the definition and the scope of the law. International criminal law has only recently grown more coherently codified, but still bears much on customary law elements, unlike some other fields of public international law, in which rules have been quite thoroughly codified. Additionally, in criminal law issues such as foreseeability, and non-retroactivity, to mention a few, ought to be given a high credence, or the reason that it is the liberty of an individual that is at stake. In discovering and applying customary international law, international criminal courts are confronted with the balancing exercise between following positivist approach – attaching itself to law as it is, as enacted or adopted by an authority, and may lead to an undesired, even unjust outcome in criminal trials – and natural law approach – arising from inherent rights and duties regardless of their formal recognition, and may risk the violation of the principle of legality. Principle of legality determines the limits of the law-making process and encompasses norms that legal rules must adhere to, such as clarity, promulgation and non-retroactivity.The question arises, how can the courts preserve the principle of legality, and especially the prohibition of retroactive effect of law, in interpreting – and in formulating – customary international law in a progressive manner. Should the principle of legality be applied liberally in order to bring perpetrators to justice, or is strict application necessary in criminal courts, even at the cost of some impunity? This paper analyses how these two aspects should be balanced and reconciled against one another in discovering, interpreting, and applying customary international law, with reflections on theories of H.L.A. Hart and Lon Fuller – the two influential proponents of modern positivist and natural legal thought, respectively – and recent case-law of international courts in fields of international criminal law and human rights law. Also, Hart‟s primary and secondary rules, and rule of recognition are considered in the determination of what may count as customary international law. First, I consider the principle of legality and its importance in the formation of law – with emphasis on customary international law, followed analysis of its link to morality and the concepts of lex lata and lex ferenda. I have included a brief discussion on the application of primary and secondary rules and rule of recognition in the formation of (customary) international law. Finally, I analyze selected recent court decisions which deal with international crimes and the principle of legality, with the aim of reflecting on the above issues.

International criminal law (ICL) is legally plural, and not a single, unified body of norms. Trials for international crimes involve a complex dance between international and domestic criminal law, the specificities of which vary markedly from one forum to the next. To date, many excellent scholars have suggested that the resulting doctrinal diversity in ICL should be tolerated and managed under the banner of “legal pluralism.” To our minds, these scholars omit a piece of the puzzle that has major implications for their theory—the law’s history. Neglecting the historical context of the international and national criminal laws that have informed and continue to inform ICL leads to the uncritical adoption of criminal law doctrine as a proxy for diverse social, cultural, and political values. This is often a false equation that results in important normative distortions, with major implications for the field’s self-image, function, and legitimacy. In particular, scholars and courts overlook that much criminal law doctrine globally is the result of either a colonial imposition or an “unsuccessful” legal transplant. In this Article, we revisit a cross-section of this missing history to contribute to both legal pluralism and ICL. For the former, we demonstrate that there is nothing inherently good about legal pluralism, and that in some instances, a shift from its descriptive origins to a more normative managerialism risks condoning illegitimate law. For ICL, our historiography shows how partiality is embedded in the very substance of ICL doctrine, beyond just the politics of its enforcement. At one level, this realization opens up the possibility of renegotiating, at least in certain circumstances, a universal ICL that is actually more plural in terms of values and interests than doctrinal pluralism. At another, it suggests that institutions capable of trying international crimes need to do far more to step away from the ugly legal history they have inherited.

The author discusses the relationship between international criminal law and national criminal law. The relationship between international and domestic law is a perennial issue in the theory and practice of international and constitutional law. Slovenian law recognises the supremacy of international law over national laws and regulations but maintains the supremacy of the Constitution over international law. Customary international law poses the greatest problem in the relationship between international and national criminal law. Unlike international law, which considers customary law an extremely important source, national criminal law expressly prohibits using customary law because of the principle of legality. In Slovenia, the principle of legality in criminal proceedings is also expressly enshrined in Article 28 of the Constitution. The author considers that, by adopting the Act on Cooperation between the Republic of Slovenia and the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, Slovenia has ratified instruments of international law which are contrary to Article 28 of the Constitution of the Republic of Slovenia. A similar finding applies to the Rome Statute of the International Criminal Court. Such a conflict can only be resolved in two ways: either by denunciation of the treaty or by amendment of the Constitution. The author cannot predict how the legislator will decide.

The structural differences between international and transnational crimes, and between international and transnational criminal law, are not dispelled by the globalisation of transnational organised crime. As a result, the reasons for the different responses provided by international and transnational criminal law to international and transnational crimes remain intact. Nevertheless, this does not prevent the most serious acts of violence by clandestine business structures from amounting to international crimes, in particular crimes against humanity. Consequently, they should receive an appropriate response to their true nature by international criminal law.