Globalisation, crime and governance. Transparency, accountability and participation as principles for global criminal law

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Abstract

The aim of this chapter is to look for analytical tools at an abstract level to help further the debate on the many legal and practical issues besetting the public spheres of transitional and international criminal justice. To that end, I propose a global criminal law perspective, encompass- ing both transitional justice and international criminal law and transnational criminal law, and inquire into the principles that could guide us. Can we simply apply domestic principles of criminal law and criminal justice at the transstate level? Admittedly, a theoretical framework developed for sovereign states can be adapted to an interstate context. Yet, the inherent weaknesses of the modern principled approach to criminal law remain—for instance, the lack of an empirical basis, and of respect in practice, for the use of the harm criterion or the ultima ratio principle. The result is a certain cynicism regarding the actual capacity of modern criminal law principles to steer legislative and judicial developments.
I suggest looking elsewhere when discussing how to govern and imple- ment global criminal justice and advocate a procedural approach, relying on two theoretical frameworks. The first was proposed by Brants, Mevis and Prakken in 2001, and looks to procedurally oriented principles to address criminal justice issues, in particular transparency, accountability and participation. The second is also a call for a procedural approach but launched in the context of the Global Administrative Law project and the debate on global constitutionalism. Can these two approaches be connected? What are their limits and possibilities for global criminal justice and their application for global criminal law? Finally, how do they interrelate and could they provide a way forward in terms of a methodology to judge their application in each and every single case, given the many insights on this to be found in governance literature?
Original languageEnglish
Title of host publicationTransitional Justice and its public spheres: engagement, legitimacy and contestation
EditorsChrisje Brants, Susanne Karstedt
Place of PublicationOxford
PublisherHart Publishing
Chapter5
Pages91-123
Number of pages33
ISBN (Print)9781509900169
Publication statusPublished - 2017

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