Delegation of Powers and Authority in International Criminal Law

Criminal Law and Philosophy, Forthcoming

Oxford Legal Studies Research Paper No. 3/2013

28 Pages Posted: 12 Jan 2013

See all articles by Shlomit Wallerstein

Shlomit Wallerstein

University of Oxford - Faculty of Law

Date Written: January 11, 2013

Abstract

By what right, or under whose authority, do you try me? This is a common challenge raised by defendants standing trial in front of international criminal courts or tribunals. The challenge comes from the fact that traditionally criminal law is justified as a response of the state to wrongdoing that has been identified by the state as a crime. Nevertheless, since the early 1990's we have seen the development of international criminal tribunals that have the authority to judge certain crimes. This article examines the moral foundation for the authority of international tribunals, arguing that it can be grounded on delegation of powers from the states with primary jurisdiction. The first part of the article examines whether there is any problem, as a matter of principle, in founding the courts' jurisdictional authority on delegation of powers. It will argue that contrary to David Luban's view, there is no inherent problem with states delegating their power to punish to other states or to international tribunals. Nevertheless, in making such a decision the ability of the court to provide fair process — a necessary requirement for the court's ability to issue authoritative decisions — should be taken into account. The second part of the article takes the ICC as a case study and examines whether its jurisdiction can be grounded on delegation of powers. It will be shown that the court's jurisdiction can indeed be founded on both direct and indirect delegation of jurisdiction from states with primary jurisdiction. This conclusion suggests that other international tribunals created by either multilateral treaties or by Security Council decisions may also be founded on similar grounds.

Keywords: international cirminal law, international crimes, International cirminal court (ICC), authority, delegation of powers, universal jurisdiction

JEL Classification: K33, K14, K19

Suggested Citation

Wallerstein, Shlomit, Delegation of Powers and Authority in International Criminal Law (January 11, 2013). Criminal Law and Philosophy, Forthcoming; Oxford Legal Studies Research Paper No. 3/2013. Available at SSRN: https://ssrn.com/abstract=2199397

Shlomit Wallerstein (Contact Author)

University of Oxford - Faculty of Law ( email )

New Inn Hall St.
Oxford OX1 2DL, Oxfordshire
Great Britain
01865-278955 (Phone)

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