The legitimacy and authority of international criminal law

This project is part of a longer-term research agenda, which interrogates the legitimacy and authority of international criminal law. It is this context that will frame my enquiry into two main questions:

  •  What is the source of authority to prosecute individuals for crimes that transcend borders? How may this authority be allocated, both vertically and horizontally, within the international legal system?
  • Who should be held morally and legally responsible for mass atrocity and on what basis?

Trials for international crimes have struggled to articulate a justification for the existence and exercise of punitive power at the supranational level. Some scholars analogize the emergence of the right to punish at the international level with the territorial state’s exercise of penal authority. Other scholars see international criminal trials as a legitimate international intervention to rectify the inability or unwillingness of the State to protect individuals against violations that constitute a serious harm to the international community. I plan to critically examine these competing models of supranational authority by situating the exercise of penal jurisdiction at the international level within a transnational multilevel governance structure. The legitimacy of international criminal jurisdiction must, therefore, be considered within a regime that allocates jurisdictional authority both horizontally and vertically beyond the territorial state. These different bases for the exercise of criminal jurisdictional – territorial, international, universal – may, moreover, have different and even competing sources of authority.

Related to this project is the question of who should be subject to these multiple and overlapping jurisdictional claims and on what basis. International criminal law, for much of its recent history, has been a law of leaders: international tribunals have concentrated their efforts on prosecuting senior leaders and “those most responsible” for mass atrocity, leaving other alleged perpetrators to domestic criminal justice and accountability processes. However, the normative basis for this focus on masterminds and police makers is contested. What is the justification for this focus on leaders in international criminal trials?

This project forms part of the STIAS long-term project Boundaries and Legal Authority in a Global context within the Crossing Borders research theme.

Project leader(s):
  • Neha Jain (Law School, University of Minnesota, USA)

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