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Is International Law Moving towards Criminalization?
Theodor Meron1
Full text available: PDF format *
1 Introduction
Comparing the present state of international law, as it stands on the eve of the twenty-first century, with the vision elaborated by Wolfgang Friedmann in his ground-breaking book published more than thirty years ago, The Changing Structures of International Law, is indeed an undertaking of great interest.
The question of whether international law is moving towards criminalization is a vast subject. Within the scope of this paper I inevitably shall have to use a broad brush to sketch my view of the situation, an assignment that makes me uncomfortable because I will necessarily have to recall some points which are well known to readers. The still fluid state of discussions about the subject-matter jurisdiction of the proposed international criminal court further complicates my task.
Friedmann wrote that there has `[a]lways been an "international criminal law" of modest and ill-defined proportions'2 and that the only recognized crimes were piracy jure gentium, and war crimes. As a result, Friedmann wondered whether the crimes stated in the Nuremberg Charter, other than genocide, would become part of universal criminal law.3 He recognized, however, that the Nuremberg Charter's influence would extend international crimes by establishing individual responsibility for certain internationally recognized offences, such as murder, deportation and the planning, preparation and initiation or waging of a war of aggression.4 Thus, he was able to foresee that such individual responsibility would exercise a strong influence over the legal responsibility of states and governments.5 Friedmann's discussion of the possibilities for extending international criminal offences beyond political state action proves equally interesting. In his opinion, such a broadening of international criminal law would depend both on the general principles of criminal law recognized by civilized nations and on the extent to which such offences are accepted in the criminal laws of the various nations.6 In discussing new offences, especially in the economic arena, Friedmann recognized the growing extraterritorial aspects of such crimes as, for example, violations of anti-trust legislation.7
Beyond these normative considerations, Friedmann's writings examined the institutional arena as well. His prediction that expanding international law would ultimately require the creation of an international criminal court8 is now being realized through the United Nations discussions.
Friedmann's conception of a broader corpus of international criminal law governing crimes by individuals has already largely become a reality, with the exception, perhaps, of crimes against peace. The new offences in the economic arena to which he alluded, especially those with extraterritorial effects such as violations of anti-trust legislation, have become extraordinarily important. These offences, as well as acts resulting in major environmental disasters, are nearly always caused by corporations or legal persons. Since corporations are by far the most important actors in our contemporary experience, the criminalization of their offences is a vital issue for debate.
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1 * Charles L. Denison Professor of Law, New York
University School of Law, 40 Washington Square South, New York, NY 10012-1099,
USA.
2 W. Friedmann, The Changing Structure of International Law
(1964) [hereinafter Changing Structure], at 167.
© 1990-2004 European Journal of International Law
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