Taking Internationalism Seriously: Why International Criminal Law Matters

Oxford Handbook of International Criminal Law, ed. Jens David Ohlin, Forthcoming

Hebrew University of Jerusalem Legal Research Paper No. 16-21

19 Pages Posted: 4 May 2016 Last revised: 6 Jul 2016

See all articles by Miriam Gur-Arye

Miriam Gur-Arye

Hebrew University of Jerusalem - Faculty of Law

Alon Harel

Hebrew University of Jerusalem - Faculty of Law

Date Written: May 3, 2016

Abstract

It is often argued that international criminal law (ICL) is designed to overcome deficiencies in national legal systems. When the state is incapable or unwilling to punish, it must be replaced by a reliable and impartial agent. Under this view, ICL is a pragmatic solution to the partiality and/or ineffectiveness of national legal systems.

This Article rejects such a view; ICL is not a pragmatic solution to the partiality, lack of accountability and/or ineffectiveness of national legal systems. Nor is ICL international by coincidence or due to contingent features such as the greater competence of international tribunals, their better accountability or impartiality. Rather, the goods of international criminal law and the values it promotes can only be provided by international entities. We call this view ‘robust internationalism’. According to robust internationalism, the international character of the tribunals tasked with applying international criminal law is necessary to successfully fulfill their mission. The article further argues that robust internationalism is implicitly recognized by the founders of ICL and is also reflected in some of its doctrines. Failing to account for it is therefore incongruous with the realities of ICL as practiced today.

Suggested Citation

Gur Arye, Miriam and Harel, Alon, Taking Internationalism Seriously: Why International Criminal Law Matters (May 3, 2016). Oxford Handbook of International Criminal Law, ed. Jens David Ohlin, Forthcoming; Hebrew University of Jerusalem Legal Research Paper No. 16-21. Available at SSRN: https://ssrn.com/abstract=2774320

Miriam Gur Arye

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel

Alon Harel (Contact Author)

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
97 22 588 2582 (Phone)
97 22 582 3042 (Fax)

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