The Identity Crisis of International Criminal Law
Leiden Journal of International Law, Vol. 21, pp. 925–963, 2008
39 Pages Posted: 5 May 2008 Last revised: 3 Dec 2010
Date Written: March 5, 2010
The general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. These fundamental principles distinguish a liberal system of criminal justice from an authoritarian system. However, recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles.
The object of inquiry in this article is the discourse in ICL: the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims, and how these forms of reasoning in fact engender contradictions with the liberal values proclaimed by the system. This article argues that, in drawing (as it necessarily did) on national criminal law as well as international human rights and humanitarian law, ICL absorbed contradictory assumptions and methods of reasoning. These contradictions in reasoning lead to contradictions in doctrine and departures from the stated principles of the system.
The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include: interpretive approaches, substantive and structural conflation and ideological assumptions. The identity crisis theory helps explain how a liberal system of criminal justice - one that strives to serve as a model for liberal systems - has come to embrace illiberal doctrines.
The article argues that we need to critically examine not only what we think, but how we think, in order to advance ICL as a coherent discipline.
Keywords: International Criminal Law, Human Rights, Humanitarian Law, Legal Reasoning, Liberalism, Legality, Strict Construction, Interpretation, Joint Criminal Enterprise, Command Responsibility
JEL Classification: K14, K33, B30
Suggested Citation: Suggested Citation