Although criminal jurisdiction is usually exercised by governments, offenses can also be proscribed by international law, and punishment can be imposed by international tribunals. This article critically examines the legitimacy of such exercises of international criminal jurisdiction. It reasons that criminal law can plausibly be justified as a cooperative institution that achieves the public good of a rule of law, with its attendant benefits of social peace and equal dignity of persons. It then argues that such a beneficial rule of law requires a punishing authority with the executive capacity to protect those it claims to regulate. It would follow that criminal prohibitions may not be justifiable if they cannot be enforced systematically. Because the international legal system generally lacks the executive capacity required for a rule of law, the article suggests that international criminal punishment is justifiable as supportive of a rule of law only in rare circumstances. Finally, the article considers whether an alternative expressive rationale can, nevertheless, justify occasional prosecutions as useful in legitimizing international humanitarian norms. It questions whether the expressive benefits of such prosecutions can outweigh the expressive risks of promising protection the international legal system cannot deliver.
University of Toronto Law Journal
Authority to Proscribe and Punish International Crimes,
U. Toronto L.J.
Available at: https://digitalcommons.law.buffalo.edu/journal_articles/278