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International crime and the politics of international criminal theory Kiyani, Asad Ghaffar

Abstract

This dissertation responds to the dissonance between international criminal law’s utopian visions and the challenges posed by its implementation. While holding great promise, international criminal law remains a novel and unstable discipline, contested as being under-theorized and/or deferential to political and economic power. These arguments attack the substance and structure of international criminal law, undermining claims as to its effectiveness and even sustainability. In responding to these challenges, this dissertation uses postcolonial theory and Third World Approaches to International Law (TWAIL) to address central questions of criminal law theory. The goal of this dissertation is to develop a plausible normative framework for international criminal law. This normative framework will provide a platform for critiquing existing norms and practices, as well as the basis for alternative understandings of international criminal law, and potential responses to these problems that are normatively coherent and consistent with the goals of international criminal law. This dissertation offers five inter-related conclusions. First, it demonstrates the utility of TWAIL as a methodological and theoretical frame for studying international criminal law. Second, it argues for a broader and more normatively consistent understanding of what constitutes an international crime. Third, it offers a justification for extraterritorial punishment that accounts for state sovereignty as an important interest. Fourth, it explains why the selective application of international criminal law undermines this justification, and how this might be remedied in both normative and practical terms. Fifth, it identifies the potential disruptions international criminal law poses to general public international law, and explains why these challenges may undermine the long-term goals and viability of the field.

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Attribution-NonCommercial-NoDerivs 2.5 Canada

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