We have focused so far, explicitly or implicitly, on the domestic criminal law of nation states—a criminal law that typically claims jurisdiction only over crimes committed within the state's territory, by and against citizens of or visitors to that state (for some of the complications here, see Hirst 2003; Duff 2007: ch. 2.2). However, recent years have seen also seen significant developments in international criminal law, culminating in the creation of the International Criminal Court in 2002 (see Rome Statute of the International Criminal Court 1998; Cassese 2003: 340-405). Behind a range of particular questions about the proper scope of international criminal law (over what kinds of crime should the ICC have jurisdiction), about the relationship of the ICC to domestic courts and systems of criminal justice, and about the appropriate procedures for international criminal trials, lies a deeper question about the moral authority or legitimacy of any such court: by what moral right does it calim jurisdiction over this range of wrongs and over these wrongdoers? This question becomes particularly acute in relation to crimes whose impact is intra- rather than inter-national. Crimes committed by one state against another, or against another's population (war crimes, the crime of aggression; Rome Statute arts. 5, 8), are clearly better dealt with by an international court: but why should such a court have jurisdiction over ‘widespread or systematic attack[s]’ committed by a state's officials against its own citizens (Rome Statute art. 7, defining ‘crimes against humanity’)? What could give such a body the moral authority to hold those who commit such wrongs to account—and just what kinds of wrong can it claim as its business?
One answer to these questions appeals to the impersonal demand of retributive justice that those who commit such wrongs should not escape punishment: the ICC acts in the name of justice. Another answer is that the ICC acts in the name and on behalf of the more local polity within and against which the crimes were committed, when the domestic courts will not or cannot act effectively. Another answer takes seriously the idea of ‘crimes against humanity’, and portrays the ICC as acting in the name and on behalf of‘humanity’: those who commit such wrongs must answer not merely to their particular polities, but to humanity itself, since their crimes ‘deeply shock the conscience of humanity’,and are ‘of concern to the international community as a whole’ (Rome Statute, Preamble). Each of these answers is problematic: a central task for theorists of criminal law is to work towards a clearer understanding of the questions to which such answers are offered (see generally Altman & Wellman, 2004; Luban, 2004; May 2005; Besson & Tasioulas 2008).
