Crimes Against the Sovereign Order: Rethinking International Criminal Justice
American Journal of International Law (2019)
54 Pages Posted: 24 Aug 2019 Last revised: 27 Aug 2020
Date Written: August 23, 2019
The scope of international criminal jurisdiction poses a fundamental challenge for criminal law theory. Prevailing justifications for the state’s authority to punish crime assume the existence of connections between the state and either the criminal or the crime. However, such connections are not required in the international criminal law context, where individuals can be tried before the courts of foreign states that are unconnected to the offense, or before international tribunals. Acknowledging this gap in existing criminal law theory requires us to identify the characteristic that distinguishes international crimes from domestic ones and to consider whether that distinction can justify the unusual authority of non-nexus institutions to punish international criminals. Without a convincing answer to this question, we must consider whether the core structure of our international criminal justice framework — universal and international punishment — is illegitimate.
This article introduces a new theory of what distinguishes international crimes from domestic crimes and justifies the unusual scope of international criminal jurisdiction, grounded in the history of the field. What we have defined as international crime has changed dramatically over the course of recent centuries; as the article demonstrates, since the late eighteenth century, there have been three distinct periods, each defined by a focus on a different archetype of international offense. However, these were not isolated changes. Throughout the three eras of international criminal law, international society has been structured as a legal order of sovereign states — or a sovereign order — which itself has undergone a series of significant transitions. The changes in international crime relate to changes in the nature of the sovereign order in a significant way. Specifically, the paradigmatic international offenses emblematic of each era violated the organizing principles around which the system of sovereign states was structured in each period. What ultimately distinguishes international crimes from domestic ones is that international crimes undermine the ordering of international society into a system of sovereign states. Tracing this connection between international offenses and these organizing principles also points to a potential link to domestic criminal law theories that justify criminal punishment on the basis that state authority to punish is necessary to secure the rule of law within the domestic realm. Likewise, international criminal punishment might be justified on the basis that securing the existence of a system of states is required to create the global conditions necessary to secure the rule of law within each state.
Keywords: International Criminal Law, Criminal Law Theory, History, Crimes Against Humanity, Genocide, War Crimes, Crime of Aggression, Piracy
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