Santa Clara Journal of International Law
In this paper, I will first discuss the importance of the deterrence rationale to the application of international criminal law. Although deterrence may be a laudable goal, I will then suggest that the relationship between deterrence and international criminal law is woefully under-theorized and unsupported by any empirical evidence. Finally, I consider the effect of Nollkaemper's proposed shift to system criminality in light of this critique of the deterrence rationale. While in some ways my critique of the deterrence rationale supports Nollkaemper's overall recommendation, I suggest that pursuing system criminality would actually tend to worsen the problems I will identify in my deterrence critique. By widening the set of individuals who are likely to resist prosecution, the pursuit of system criminality is more likely to strengthen rather than weaken the regime's resisting international criminal prosecution, both in the short term and possibly in the long term as well. I use the recent ICC arrest warrants against Sudan's sitting President and Minister of the Interior as early evidence of the dangers of Nollkaemper's proposal.
Julian G. Ku,
How System Criminality Could Exacerbate the Weaknesses of International Criminal Law, 8 Santa Clara J. Int'l L. 365
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