13 - Positive General Prevention and the Idea of Civic Courage in International Criminal Law

Summary

Klaus Günther considers the contents of the message communicated with international punishment. In his outline of the communicative structure of criminal law in general, he considers the different stages of the communicative sequence and, at the same time, elaborates on the different messages sent at each stage to the offender, the victims and the society. He then asks the question of whether these messages can be transferred from the domestic to the international level, i.e., the domestic analogy. While a transfer is possible, Günther argues that some modifications are necessary in particular regarding the normative community as addressees. Günther explains that due to the dual status of each individual, as a member of the ‘international community’ and as a member of the domestic normative community, addressees of international criminal norms at the same time are also always bound by domestic laws. This dual status requires a ‘critical reflective attitude’ with regard to the human rights legitimacy of the domestic law. And in case of a – direct or indirect – norm collision between domestic law and international law, international criminal law delivers the message to disobey the demands of the domestic system: What is required from the addressee of international criminal law norms is civic courage and the willingness to non-conformist behaviour.