A historical analysis of state responsibility shows that this body of law developed from an implicit doctrine into a separate topic of international law over the centuries. The traditional law of state responsibility was confined to injuries to aliens, largely due to the widespread resort to international arbitration in the second half of the nineteenth century. Following scholarly interest in responsibility, codification initiatives mushroomed with the domestic analogy playing a varying role. Progress in codification was made only in the 1960s with the abandonment of the controversial traditional law of state responsibility for the benefit of generalized and secondary rules on state responsibility. State responsibility now became important for the role it played with respect to legality and rule of international law; yet, its foundation was based on bilateral state relations and remedying of concrete wrongs. As a consequence, the law of state responsibility as codified in the 2001 Articles on State Responsibility remains infused with tensions and dilemmas, in addition to which the legal form and effect of the Articles have remained under debate.

Kai Ambos takes up the question of the domestic analogy ‘proper’ and raises the question of whether a right to punish can exist without a state, and answers it in the affirmative. When it comes to what Elies van Sliedregt would call the domestic analogy ‘of transplants’, he is less sceptical: In his view, international criminal law can very well borrow and import concepts from domestic law, albeit it should not be done too schematically and there might be some limits. As regards sentencing, Ambos emphasizes the important of concrete sentencing factors and a transparent sentencing procedure, but in his view theories of punishment have no influence on the outcome.

Elies van Sliedregt discusses the ‘domestic analogy’ and analyses the differences and similarities between domestic, i.e., ‘ordinary’, and international criminal justice. First, she distinguishes what she calls the domestic analogy ‘proper’ and the domestic analogy ‘of transplants’. While the former relates to international law and concerns the question of building a world order analogous to the domestic order and includes the question of the authority to punish, the latter refers to criminal law and the (unreflected) application of domestic concepts and theories on the international level. Focusing on the domestic analogy of transplants, she continues to extrapolate the sui generis nature of international criminal law, which she discusses in relation to the nature of international crimes, the perpetrators of international crimes and the punishing community. Van Sliedregt determines that today there is a move towards a communicative theory of international punishment, as well as an emphasis on reconciliation and reparations, and makes an argument for a stronger integration of rehabilitation, post-trial justice and reintegration into the international criminal justice system. In addition, she criticizes that in international criminal law there is no consideration for other forms of sanctions aside from incarceration.

Jochen Bung raises doubts as to the distinctiveness of international criminal law. In his view there is no need for specific theories of punishment in international criminal law or to develop specific criminological theories addressing international crimes. Instead, we can draw on what we know from the domestic context. While he agrees that there still is guessing and shadowboxing when it comes to the ‘why punish’ question in international criminal law, he notices that this is equally true when it comes to domestic theories of punishment. What is special though is that international criminal law emerged challenging the classic rules of state sovereignty and non-intervention. For him, this is where the discussion should start, and instead of asking ‘why punish’, we should raise questions such as, Will international criminal law vanish again? Should we hope it will vanish again? Has it helped to establish a collective memory which will prevent us from experiencing future mass atrocities? Is international criminal law a matter for experts and specialists? Is it sufficiently democratic? Is it a sufficiently universal affair? Or is it just another colonial strategy? Can it get less selective? And: Is international criminal law capable of self-criticism?