International criminal law as a means to fight the ‘hostes humani generis’? On the dangers of the concept of enemy criminal law

Abstract

The exercise of state power in the form of criminal punishment directly impacts on personal liberty of living individuals. In the criminal law judges can ultimately decide to imprison the offender. Taking into account the severity of the consequences for the individual standard liberal principles require an especially strong justification and limitation. The certainty of this liberal basis seems to be at question when it comes to International Criminal Law: Recently some scholars do not shape International Criminal Law as liberal criminal law but as an enemy criminal Law – in other words as a means to fight the hostes humani generis – the enemies of all mankind. International Criminal Law is about the core crimes of the international community: war crimes, crimes against humanity, genocide and aggression. It has its modern roots in the war crimes tribunals in Nuremberg and Tokyo after the Second World War. In the 1990s the UN-Security Council established the International Criminal Tribunal for former Yugoslavia (ICTY) to prosecute core crimes committed on the territory of the former Yugoslavia during the ethnic conflicts, and the International Criminal Tribunal for Rwanda (ICTR) to prosecute the Rwandan Genocide. In 2002, the first permanent, treaty based, International Criminal Court was established. The ICC is based on an international treaty. The ICC generally has jurisdiction only over crimes committed on the territory of a state party or by a citizen of a state party. However if the UN Security Council refers a situation to the Court, it has jurisdiction over crimes regardless of the place of commission or the nationality of the perpetrator. The following analysis wants to contribute to the theoretical basis of this emerging field of criminal law. It begins with the concept of an enemy criminal law which law professor Günther Jakobs developed in German criminal law. After that the main focus is on the possible dimensions such a conception could have in the context of International Criminal Law. Regarding the critique of enemy criminal law the author highlights the question whether the conception is at odds with the principle of human dignity.