Revisiting the application of ultima ratio in International Criminal Law

Abstract

Criminalization of any unlawful conduct should be the legislator’s ultima ratio in the sense that the infliction of punishment should be considered as the ultima ratio of social policy. In fact, without a theory to constrain the scope of the criminal law, rampant overcriminalization has resulted. The last resort principle offers the possibility of dramatically narrow the reach of the criminal sanction. Although the application of this principle has been predominantly on a domestic basis this thesis considers the application of this principle especially on an international basis predominantly within an international criminal law ambit. This thesis examines the definition of the ultima ratio principle and its relationship with other established principles including the principle of proportionality and subsidiarity. Then, it examines the application of the ultima ratio principle within a criminal justice system. Since the discussion of punishment in an ultima ratio context is of fundamental importance, Chapter 3 of this thesis explains the various rationales of punishment in criminal justice systems. This relationship between punishment and ultima ratio is important since the infliction of punishment may be considered as one of the severest intrusion into the personal rights of a human being and as a result it should only be resorted when other non-criminal law measures are not sufficient. After having established the definition of ultima ratio, its application, the role and rationales of punishment, this thesis goes on to examine the application (if possible) of ultima ratio within an international criminal law ambit. International criminal law regulates serious violations of human rights and therefore the application and interpretation of the ultima ratio principle should be different than that applied in the domestic sphere. As a result the application of ultima ratio within international criminal law becomes a rather complicated exercise.