8 - Is International Criminal Law Special?

Summary

Jochen Bung raises doubts as to the distinctiveness of international criminal law. In his view there is no need for specific theories of punishment in international criminal law or to develop specific criminological theories addressing international crimes. Instead, we can draw on what we know from the domestic context. While he agrees that there still is guessing and shadowboxing when it comes to the ‘why punish’ question in international criminal law, he notices that this is equally true when it comes to domestic theories of punishment. What is special though is that international criminal law emerged challenging the classic rules of state sovereignty and non-intervention. For him, this is where the discussion should start, and instead of asking ‘why punish’, we should raise questions such as, Will international criminal law vanish again? Should we hope it will vanish again? Has it helped to establish a collective memory which will prevent us from experiencing future mass atrocities? Is international criminal law a matter for experts and specialists? Is it sufficiently democratic? Is it a sufficiently universal affair? Or is it just another colonial strategy? Can it get less selective? And: Is international criminal law capable of self-criticism?