Punishments, sanctions and other enforcement instruments of normative orders

Project leaders: Prof. Dr. Klaus Günther and Prof. Dr. Cornelius Prittwitz

International criminal law plays a prominent role in the development of international legal norms, especially human rights, and their sanctioning. The question of its legitimacy or even the question of its penal purpose is controversial. As much as the legitimacy of international criminal law appears to be evident at first glance, the justifications for the sanctions, especially the infliction of evil in the form of punishment, are just as controversial. This is where the project attempts to find an answer. Günther and Reuss’ sub-project has made a new proposal in this regard. The sub-project by Prittwitz and Alatovic has taken the controversy surrounding the purposes of punishment in international criminal law as an opportunity to critically discuss the questionability of a normativist approach to punishment and its justifications.

The traditional penal purposes of national law, namely: retribution (compensation for guilt), security, resocialization, individual and collective deterrence or strengthening the awareness of norms, to legitimize criminal proceedings, imposition and execution, cannot be transferred seamlessly to international criminal law. Parts of the literature already take a similar view, but not the courts. As a first step, the project therefore examined the specific normative, legal-theoretical and empirical-criminological backgrounds of international criminal law, which differ fundamentally in some respects from the corresponding backgrounds of national criminal law. In view of this state of discussion, two different paths could subsequently be taken. The first (a) consists of a further development of the theories of crime with specific modifications for international criminal law, which are ultimately based on arguments of justice. The second path (b) leads to denying the possibility of a universally valid legitimation of international criminal law at all and to understanding its legitimation more as a particular and context-dependent one. Without being able to take the path of a universal justification via normative reasons, international criminal law is based on a broad factual consensus (including in legal practice); its legitimacy consists in the fact that the addressees recognize the legal norms as reasons for action. However, it must be borne in mind that de facto legitimacy is never absolute, but always limited, i.e. it is not supported by all addressees. This does not amount to a normative theory of international criminal law, as in (a), but to a realistic-pragmatic theory.

(a) Sub-project Günther/Reuss: A comparison of the expectations of international criminal law and the traditional purposes shows that none of the purposes in their traditional form can be completely convincing and that absolute theories of punishment in particular must be rejected. Instead, international criminal law, measured against its own claim to protect human rights from the most serious and massive violations, can only be legitimized as a preventive criminal law of guilt, which must also include the human rights of the accused and the convicted offender in its scope of protection. Its goal can therefore only be the strengthening of a global, civil society awareness of the validity of and respect for human rights. The traditional purpose of positive general prevention, i.e. the purpose of strengthening trust in the application of norms, must therefore be modified accordingly. International criminal law must not strengthen confidence in the validity of any given state order, according to the conventional view, but rather the awareness of the global validity of human rights, even beyond the state, in cases of doubt. In the event of conflict, these must be defended against state orders that are hostile to human rights, or at least must not be violated in compliance with state orders. The imperative of international criminal law therefore calls for a critical examination of the claim to validity and compliance with state orders and, if necessary, to resist them instead of adapting to them. The awareness that is to be created or reinforced in this way therefore serves to prevent the establishment of authoritarian regimes that are hostile to human rights, but is also intended to limit the normative power of already existing or still existing regimes. With its proceedings and its guilty verdicts, it makes an appeal to all citizens of the world to resist the anti-human rights imperatives emanating from these regimes. By doing so, and by also prosecuting the leaders of such regimes, it delegitimizes and deconstructs their authority as a legitimate source of law, i.e. as legitimate authorities for setting norms.

(b) Prittwitz/Alatovic sub-project: If one looks at international criminal law as a de facto accepted law, instead of looking for a normatively justified legitimation, it becomes apparent that this acceptance is not generally given – and collides here with the principle of state sovereignty, among other things (for example, some states have not acceded to the Rome Statute establishing an International Criminal Court). From this perspective, the function of international criminal law – as of law in general – is to enforce general norms of behavior against the will of those who do not accept it – in other words, to some extent without legitimacy – using coercive means if necessary. In the tension between the two sub-projects (a) and (b), the contrast in legal theory between natural law and the critique of natural law is repeated, as is the contrast between institutionalists and realists at the level of political theory. A corresponding pragmatic-realist theory of law was developed in Samir Alatovic’s dissertation. The main argument developed therein is that the contradiction between individual rights and the universality of law cannot be resolved on a normative level. The law is not only, but also a violent act against those who do not want to abide by man-made rules and who do not have to recognize these rules as justified. From a normative perspective, international criminal law stands on solid normative ground and only becomes entangled in aporias in practice – from a pragmatic perspective, these aporias are only apparent and even international criminal law, which prosecutes crimes that all people should actually also condemn, cannot completely overcome the contradiction between normative claim and legitimizing acceptance. The lesson for international criminal law should be to accept this contradiction and to seek acceptance. In practical terms, this position thus comes to a similar conclusion as sub-project (a): international criminal law should further promote the de facto acceptance of human rights at the international level and rely more on its educational character than on its sanctioning character.

A selection of the most important publications resulting from the project includes:
Günther, Klaus / Reuss, Vasco (2014): ‘Die Legitimation des Völkerstrafrechts in Deutschland. Völkerstrafrecht als Bürgerstrafrecht”, in: Christoph Safferling/ Stefan Kirsch (eds.), International criminal law policy. Practice of international criminal law , Berlin/Heidelberg: Springer, 127-164.
Prittwitz, Cornelius (2012): “Die Rolle des Strafrechts im Menschenrechtsregime”, in: Arno Pilgram et al. (eds.), Einheitliches Recht für die Vielfalt der Kulturen, Münster: LIT Verlag, 23-39.
Reuss, Vasco (2012): Civil courage as a penal purpose of international criminal law. What does positive general prevention of global civil society mean? (Series: Rechtsgeschichte und Rechtsgeschehen – Kleine Schriften, vol. 28), Münster: LIT Verlag.