How System Criminality Could Exacerbate the Weaknesses of International Criminal Law

Santa Clara Journal of International Law, Vol. 1, 2010

Hofstra Univ. Legal Studies Research Paper No. 10-12

9 Pages Posted: 11 Apr 2010

See all articles by Julian Ku

Julian Ku

Hofstra University - School of Law

Abstract

According to Andre Nollkaemper, the problem of “system criminality” reveals a flaw in the international criminal law’s focus on individual liability.Because many of the criminal acts prohibited by international criminal law are inextricably intertwined with the political and legal system from which it emerges, Nollkaemper argues, international criminal law should be reconsidered to address these systemic factors. Otherwise, it cannot achieve its second goal of deterring future criminal activity. In this comment, I suggest that pursuing system criminality would actually tend to worsen the problems Nollkaemper seeks to address. By widening the set of individuals who are likely to resist prosecution, the pursuit of system criminality is more likely to strengthen rather than weaken the regime’s resisting international criminal prosecution, both in the short term and possibly in the long term as well. I use the recent ICC arrest warrants against Sudan’s sitting President and Minister of the Interior as early evidence of the dangers of Nollkaemper’s proposal.

Keywords: international criminal law, deterrence, international law

JEL Classification: K33

Suggested Citation

Ku, Julian G., How System Criminality Could Exacerbate the Weaknesses of International Criminal Law. Santa Clara Journal of International Law, Vol. 1, 2010; Hofstra Univ. Legal Studies Research Paper No. 10-12. Available at SSRN: https://ssrn.com/abstract=1586379

Julian G. Ku (Contact Author)

Hofstra University - School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-4237 (Phone)
516-463-6264 (Fax)

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