How System Criminality Could Exacerbate the Weaknesses of International Criminal Law

According to Andre Nollkaemper, the problem of “system criminality” reveals a flaw in the international criminal law’s focus on individual liability.Because many of the criminal acts prohibited by international criminal law are inextricably intertwined with the political and legal system from which it emerges, Nollkaemper argues, international criminal law should be reconsidered to address these systemic factors. Otherwise, it cannot achieve its second goal of deterring future criminal activity. In this comment, I suggest that pursuing system criminality would actually tend to worsen the problems Nollkaemper seeks to address. By widening the set of individuals who are likely to resist prosecution, the pursuit of system criminality is more likely to strengthen rather than weaken the regime’s resisting international criminal prosecution, both in the short term and possibly in the long term as well.

I use the recent ICC arrest warrants against Sudan’s sitting President and Minister of the Interior as early evidence of the dangers of Nollkaemper’s proposal.