Edited by Alexander Orakhelashvili
Chapter 9: The Philosophy of International Criminal Law
Robert Cryer 9.1 INTRODUCTION International criminal law is an area that recently has become the subject of significant attention, both by lawyers and philosophers, as well as those working at the interface of the two disciplines. Although, as is often the case, practitioners in the area are somewhat sceptical of such inquiry, jurisprudential considerations have long been an integral, if not always acknowledged, part of international criminal law. This is entirely appropriate; criminal law is an area of study which has traditionally been the subject of philosophical enquiry at the domestic level.1 Although, as we will see, some are dubious, international criminal law, since its aims are cognate2 to those that criminal law seeks to achieve at the domestic level, ought to be subject to similar scrutiny. The analogous nature of international and domestic criminal law is underpinned now by the fact that the principle of complementarity, which underpins the relationship between the International Criminal Court and national jurisdictions, emphasises the role of domestic prosecutions in the international regime that responds to such crimes.3 Similarly to domestic criminal law, there are various different ways in which philosophy and international criminal law intersect. Some scholars working in the area work on the philosophical foundations of punishment at the international level.4 Others work on applying doctrinal criminal law theory to international criminal law;5 still others have attempted to provide philosophical foundations for particular international crimes.6 1 See, for example, Andrew Ashworth, Principles of Criminal Law (Oxford: OUP, 6th edn., 2009); A.P....
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