Edited by Róisín Mulgrew and Denis Abels
Chapter 3: Ius puniendi and individual criminal responsibility in international criminal law
This chapter treats two fairly distinct, but at the same time related, topics since individual criminal responsibility is predicated on the recognition of a ius puniendi. The imposition of punishment is, in turn, predicated upon the determination of criminal responsibility. Thus, ius puniendi, responsibility and punishment are all interrelated elements of the (international) criminal justice process. The former element is a necessary, but not sufficient condition of the latter one, e.g., the ius puniendi is a necessary condition of responsibility and this, in turn, is a necessary condition of punishment. From a prosecution perspective, if everything goes according to plan the accused will be punished and the sentence enforced because his or her responsibility for the acts charged has been demonstrated beyond reasonable doubt. As said at the beginning, however, this chapter will not treat the punishment element but be limited to the ius puniendi and individual criminal responsibility. After clarifying the relevant concepts (Section 2), the chapter explores in more detail the ius puniendi and individual criminal responsibility in International Criminal Law (‘ICL’). The former may be inferred from two limbs of a primarily collective and a primarily individualistic nature: on the one hand from the incipient supranationality of the world order (understood normatively as an order of values) and, on the other hand, from our basic human rights (human dignity) as citizens of the world society (see Section 3).
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