International Criminal Law as Justice

Abstract

Recent scholarship and jurisprudence in international criminal law (ICL) shows a dramatic flourishing of interest in fundamental principles of justice. A system of justice requires more than utilitarian reasoning aimed at maximizing impact; the system is constrained by fundamental principles that protect the individual, in order to ensure that punishment is deserved. This project contributes to this reinvigorated discussion in three ways. Firstly, I advance a framework with which to evaluate ICL doctrines. I agree with the important critique that principles familiar from national systems should not be automatically be replicated in the distinctive contexts of ICL. While principles may be adapted, our guide is that we must conform to the underlying deontological constraints. Secondly, I highlight that the application of existing criminal law theory to ICL is not a one-way process. The extreme cases and novel problems of ICL can reveal that seemingly elementary principles contain unnoticed conditions and parameters. Criminal law theory illuminates the lacunae of ICL, and ICL illuminates the lacunae of criminal law theory. Thirdly, I apply the framework to particular problems and controversies in ICL, such as command responsibility, superior orders and non-retroactivity.