The Two Liberalisms of International Criminal Law
FUTURE PERSPECTIVES ON INTERNATIONAL CRIMINAL JUSTICE, C. Stahn, L. van den Herik, eds., 2010
55 Pages Posted: 16 Dec 2010
Date Written: December 10, 2010
This book chapter expands upon the themes in "The Identity Crisis of International Criminal Law", furnishing additional illustrations and methods of reasoning that engender internal contridictions.
The focus of this chapter is not any particular doctrinal controversy; rather, it is an inquiry into the methods of reasoning commonly employed in international criminal law (ICL) discourse. Many of our familiar methods of analysis and argumentation are riddled with contradictions. These contradictions reflect the heritage of ICL – a fusion of important liberal projects that prove on closer inspection to have incompatible aspects. These contradictions manifest, for example, in ICL discourse declaring important liberal principles but then reasoning in ways that lead to contraventions of the stated principles. These incongruities can be found in our methods of interpretation, our embrace of transplanted norms, and ideological assumptions that inform our reasoning. The chapter aims to contribute to ICL discourse by drawing attention to these incongruities, instilling awareness of the need for more sophisticated discourse, and encouraging reflection on how best to resolve such contradictions.
Keywords: international criminal law, liberal principles, deontological, interpretation, dynamic, structural, ideological, joint criminal enterprise, command responsbility, duress, legality, fair labelling, causation
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