Holding individuals to account beyond the state? Rights, regulation and the resort to international criminal responsibility

Michelle Burgis-Kasthala

    Research output: Chapter in Book/Report/Conference proceedingChapter

    Abstract

    International law as a discipline and practice comprises a number of overlapping and sometimes conflicting regimes for the regulation of relations between states as well as, increasingly, various relations within and across states (Koskenniemi 2007). This chapter considers the rise of international criminal law (ICL) as a particular technique of governance that both builds on other international legal regimes and marks a departure in its practices and effects. ICL is concerned with holding individuals criminally responsible for various crimes that have become internationalised including the well-known singular crimes of piracy, slavery, genocide and apartheid as well as a whole range of offences under the broad headings of war crimes and crimes against humanity. Procedurally, ICL offences can be heard in international, hybrid and domestic jurisdictions, but it is important to note that the reach of ICL is imperfect and often relies on states to codify specific crimes. Many ICL offences grow out of public international law concerns over state responsibility regarding a state’s citizens, international human rights law (IHRL), as well as a state’s conduct of hostilities, international humanitarian law (IHL). Under these regimes, states may be held responsible for breaches of both customary and treaty norms. States will also often be required to criminalise and prosecute or extradite individuals suspected of breaching these various norms. Thus, ICL takes norms initially applicable to states and transforms them into individual criminal offences. The irony in this system—particularly for IHRL—is that, although it depicts the state as predatory and in need of restraint (Cogan 2011: 331–7, 342–3), its normative impetus is state action/consent, whether through treaty or customary law. Thus, rights and responsibilities as well as individual and state liabilities intersect at domestic, international, transnational and global levels in increasingly complex and sometimes antagonistic ways
    Original languageEnglish
    Title of host publicationRegulatory Theory: Foundations And Applications
    Editors Peter Drahos
    Place of PublicationCanberra, Australia
    PublisherANU ePress
    Pages429-444pp
    ISBN (Print)9781760461010
    DOIs
    Publication statusPublished - 2017

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