A Theory of International Crimes: Conceptual and Normative Issues
The Oxford Handbook of International Criminal Law, Forthcoming.
20 Pages Posted: 11 Dec 2017
Date Written: December 5, 2017
The quest for a unified theory of international criminalization is an important part of a compelling general theory of international criminal law. Any such account would need to have a conceptual and a normative dimension. This chapter addresses these two issues in turn. At a conceptual level, it argues that international crimes are criminal prohibitions provided under international law which are global in scope. This entails, first, that perpetrators of these crimes can be brought to justice by any national authority as well as by international and regional tribunals with no traditional connection to the crime, the perpetrators or the victims. Second, that they can be brought to justice on the basis of international law alone, irrespective of the specific legislation of any national authority allowing or even mandating such conduct. I thereby reject recent accounts, notably advocated by Roger O’Keefe and Kevin Heller, which seek to define international crimes merely by reference to the relevant legal source of the prohibition. I argue that in order to explain what an international crime is, we need to take centrally into consideration also the function that this concept serves as a matter of legal practice. At a normative level, I argue that international crimes are simply those which cannot be in force on the basis of a domestic prohibition alone, essentially because they are perpetrated, instigated or allowed by the territorial state, or because this state cannot do anything about them. As a result, individuals in different parts of the world have a fundamental interest in those who perpetrate this type of conduct being called to account by at least some domestic or international court, in order for these prohibitions to be considered in force. The chapter concludes by rejecting two recent proposals to radically expand the scope of international criminalization, either over any serious human rights violation, or over acts which do not show a significant level moral gravity or atrocity. By contrast, it offers a reinterpretation of the scope of international criminalization by putting into question the requirement that international crimes be perpetrated by groups with a significant level of organization, as currently provided for by the laws on crimes against humanity and war crimes.
Keywords: International crimes, Crimes against humanity, Violations of Human Rights, Universal Jurisdiction
Suggested Citation: Suggested Citation