Parochial versus Universal Criminal Law

Abstract

This paper takes two legislative developments in the English-speaking worldthe precedent of statutory criminalization of treason in England, and the establishment of federal criminal law in the United Statesand compares them with the development of two distinct branches of supranational criminal law: international criminal law and European criminal law. In doing so, the author demonstrates two different approaches to criminal law and the way in which criminal law can be used to protect different values. The author argues that the criminalization of certain violations follows two distinct patterns. In some cases, criminal law aims at preserving self-interest: for example, in the EU, this has taken the form of concentrating efforts to criminalize fraud against the EU's budget. This is what the author calls 'parochial criminal law'. In other cases, criminal law has the broader purpose of pursuing the protection of universal interests: this is the case of the provisions criminaliz- ing war crimes, crimes against humanity and genocide. The author concludes with some suggestions for reform of the general parts of both international criminal law and European criminal law. In the last half-century, we have witnessed systematic efforts on the part of supranational organizations to impose punishment for diverse purposes, sometimes as a surrogate for revenge after a military victory, and sometimes to broaden the purposes of justice and prevention. The two efforts that I will address in this article are the International Criminal Court (ICC) and the proposed system of European criminal law. These two efforts stand in a useful comparison with two legislative developments in the English-speaking world: the first English statute punishing treason (in 1352), and the emergence of federal criminal law in the United States. The reason for these points of comparison will become clear as I proceed.