A Cosmopolitan Liberal Account of International Criminal Law

Abstract

In this article, I argue that two prominent frameworks for evaluating and developing international criminal law (ICL) can be reconciled into a new framework that absorbs the best insights of its predecessors. We cannot simply transplant fundamental principles from national legal systems, because they may be inapposite in the unusual contexts faced by ICL. However, this novelty does not mean that we are free to simply abandon culpability, legality, and our basic underlying commitment to the individual. Instead we must develop plausible accounts of what that deontic commitment might entail in these new contexts.

My primary aim is to show the possibility of bridging the apparent normative impasse. I also briefly sketch out the proposed framework, and suggest that it can generate new questions for current controversies in ICL. As an interesting byproduct, the examination of ‘abnormal’ criminal law can raise new questions for general criminal law theory, by exposing subtleties and parameters that we might not have noticed in a study of ‘normal’ contexts.

Keywords: international criminal law, liberal account, deontological, criminal law theory, justice, fundamental principles, cosmopolitan, international tribunals, states, punishment

JEL Classification: K14, K33