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Asymmetrical Enforcement as a Problem for Theories of Punishment
from Part III - Consequences for the Practice of the International Criminal Court
Published online by Cambridge University Press: 07 February 2020
Harmen van der Wilt explains the ICC’s and the Rome Statute’s ‘design selectivity’, i.e., the ICC’s legal, structural and political limitations and well as its inherent selectivity when selecting ‘situations’ and ‘cases’. He analyzes how the problem of selectivity in international criminal law, i.e., the systematical exemption of entire categories of perpetrators from accountability, creates tensions with traditional theories of punishment. In emphasizing the shift from punishment to trial, he argues that international criminal law’s inherent selectivity can best be processed by expressivism. However, contemporary international criminal law, he concludes, conveys the ‘perverse message’ that ‘criminal responsibility depends on the party or nation one belongs to and the side on which one fights’. For the future, he calls for an approach of ‘dauntless perseverance’.
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