This paper argues that there is a default presumption that punishment has some deterrent effect, and that the burden of proof is upon those who allege that the costs of any particular penal system are insufficient to offset its deterrent benefits. This burden of proof transmits to the discussion of international law, with the conclusion that it is those who oppose international jurisdiction, rather than their opponents, who must prove their position. This they have so far failed to do.

According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity (...) are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability. (shrink)

If contemporary political theory in the area of international justice is to accomplish its aim of clarifying and making coherent the meaning of justice in an international context, the question of the appropriate role and responsibility of international criminal law must be answered. International criminal law must be more than simply domestic laws that are prosecuted at the international level. However, the question of what makes an international crime such that it deserves this special classification and international condemnation has not (...) been adequately theorized. This paper examines the character of international law as expressed by two theorists, Allen Buchanan and Larry May, and reveals the deficiencies of their theories. Then, it offers the first steps to a better theory, one that demands that two thresholds be met for an action to be considered international crime: the severity threshold and the agency threshold. It argues that these two thresholds restrict the domain of international criminal law to crimes that are of significant concern to the global community by way of their threat to political organization. International crimes are the jurisdiction of the international community because they threaten the most basic physical security human rights and because they originate out of the fundamental nature of humans as social entities and maliciously distort and threaten this natural inclination. (shrink)