International Criminal Law

Abstract

The development of a system of international criminal law is especially important so that instances of widespread or systematic human rights abuses may be prosecuted before tribunals other than those of the state in which the abuses occurred. However, this chapter rejects the conventional arguments offered in support of such prosecutions. On the conventional arguments, international criminal law justifiably gains jurisdiction in cases of widespread or systematic human rights abuses because the abuses have harmful effects that spill across borders into states other than the ones in which they were perpetrated. Refugee outflows, regional economic dislocation, and other cross‐border effects provide the ground on which international jurisdiction can gain a foothold. But underlying this conventional argument is the mistaken premise that a state's sovereignty protects it from unwanted international jurisdiction unless conduct occurring within the state has harmful effects beyond the borders of the state. This obsolete, Westphalian conception is insupportable. In contrast, on account of a state's right of self‐determination developed in Chapter 2, any state in which widespread or systematic human rights violations are being perpetrated has no claim against the exercise of international criminal jurisdiction within its borders. Moreover, there is no need to restrict such jurisdiction to genocide, crimes against humanity, and other “supercrimes.” A state with an ineffective legal system that failed to adequately protect the human rights of its citizens would be open to international jurisdiction even for such “ordinary” crimes as murder and rape. Critics of international criminal law have leveled many charges, from wasteful spending to political bias, against international criminal tribunals. Some of the critics suggest that all such tribunals be abandoned and criminal justice be returned entirely to domestic jurisdiction. This chapter argues against abandoning the project of developing institutions of international criminal justice and makes the case that it is not unreasonable to hope that the International Criminal Court will one day become a reliable enforcer of some of the most fundamental human rights.