Legal scholars and theorists have recently drawn a more sustained attention to the link between international human rights law (hereafter IHRL) and international criminal law (hereafter ICL). This concerns both positive and more normative accounts of the link. Whether positive or normative, the predominant approach to constructing the link is substantive. This overlap is normatively justified in similar terms by reference to a subset of moral human rights. In this paper, I offer an alternative to the substantive approach. After identifying (...) two flaws in the substantive approach (the problem of threshold and the problem of ethical neutrality), I defend what I call a structural account by focusing on duty‐holders. I start by reconstructing two structural characteristics common to IHRL and ICL qua international legal regimes: who has the authority to address violations of IHRL and ICL, and who can be liable for those violations. I then infer that public authority (functionally construed) constitutes the common structural core of IHRL and ICL. I rely on the extraterritorial application of IHRL and on the collective dimension of ICL violations to further support the argument. I finally offer an argument explaining the normative point of those structural features. I hold that IHRL and ICL (their adjudicative and liability regimes) are both necessary (but clearly not sufficient) to render this exercise of public authority legitimate to its subjects. (shrink)

Is there a duty to prosecute grave international crimes? Many have thought so, even if they recognize the obligation to be defeasible. However, the theoretical literature frequently leaves the grounds for such a duty inadequately specified, or unsystematically amalgamated, leaving it unclear which considerations should drive and shape processes of criminal accountability. Further, the circumstance leaves calls to end impunity vulnerable to skeptical worries concerning the risks and costs of punishing perpetrators. I argue that a qualified duty to prosecute can (...) be substantiated on the basis of a single class of reasons, though also that standard justifications of international criminal law (as currently conceived) are not up to the task. The account exploits the expressive dimension of punishment, but locates the central good of criminal accountability in its capacity to appropriately enable an agential stance on the part of subjects in transitional circumstances. It can legitimate, in a way to be specified, hope. The approach also displays the cynicism of an anti‐impunity ethos in the absence of a robust commitment to securing basic human rights in transitional circumstances. (shrink)

In the Anthropocene, human beings are capable of bringing about globally catastrophic outcomes that could damage conditions for present and future human life on Earth in unprecedented ways. This paper argues that the scale and severity of these dangers justifies a new international criminal offence of ‘postericide’ that would protect present and future people against wrongfully created dangers of near extinction. Postericide is committed by intentional or reckless systematic conduct that is fit to bring about near human extinction. The paper (...) argues that a proper understanding of the moral imperatives embodied in international criminal law shows that it ought to be expanded to incorporate a new law of postericide. (shrink)

Philosophical writing about the legal practice of punishment has traditionally focused on two central questions: what (if anything) justifies the practice of tr.

This paper explores the subject-matter of the relationship between law and humanity, filling a significant lacuna in philosophy of law in the West today. Doing so, the paper starts with recasting the traditional Chinese conflict—in particular, the conflict between legalism and Confucianism—over law in a new light of the contemporary call for stopping crimes against humanity. It then explores Habermas’ insight into and illusion of law. Finally, it examines the internal relationship between law and humanity, contending that law must always (...) treat humanity as a purpose, not as a tool to other ends, functioning to build a community of humanity; while a distinction exists between justice and benevolence, law must not be inhumane. (shrink)

Current International Criminal Law suffers from at least four theoretical shortcomings regarding its ‘concept and meaning’, ‘ius puniendi’, ‘overall function’ and ‘purposes of punishment’. These issues are intimately interrelated; in particular, any reflection upon the last two issues without having first clarified the ius puniendi would not make sense. As argued elsewhere, in an initial contribution towards a consistent theory of ICL, the ius puniendi can be inferred from a combination of the incipient supranationality of the value-based world order and (...) the world citizens’ fundamental human rights predicated upon a Kantian concept of human dignity. On this basis, it is now possible to examine the overall function of ICL. Given the fact that ICL has not yet achieved the status of an autonomous discipline, the inquiry must start with a discussion of national theories of criminalisation. The article focuses on the two most important theories of criminalisation, namely the theories of protection of Rechtsgüter and the prevention of harm. Next, it examines whether and how these national theories can be transferred to ICL. (shrink)