Positivism and International Criminal Law: The Principle of Legality as a Rule of Conflict of Theories

Abstract:     
This chapter discusses legal positivism in international criminal law through the lens of the Principle of Legality. First describing the slow adoption of the principle of legality in ICL from the Nuremberg and Tokyo trials, the chapter argues against most of the reasons put forward to limit its application in contemporary practice of ICL. In order to do this, the Chapter first develops the idea that the principle of legality imports legal positivism as a substantive norm of ICL, which makes it an original field of law and that the principle of legality therefore acts as a Rule of Conflict of Theories. Looking more closely at the practice of international courts, the chapter suggests that the principle of legality requires, among other things, the slow exclusion of customary law as a source of ICL and the exclusion of Articles 31 and 32 of the Vienna Convention on the Law of Treaties as means of interpreting international criminal statutes, even in the case of the ICC. The Chapter concludes with some general issues on the tension between criminal lawyers and international lawyers in ICL and on the limits of the alleged specifics of the field.

Number of Pages in PDF File: 43

Keywords: legal positivism, international criminal law, judicial creativity, treaty interpretation, principle of legality, customary international law

Accepted Paper Series