The Making of International Criminal Law
C. Brölmann & Y. Radi (eds), Research Handbook on the Theory & Practice of International Lawmaking (Edward Elgar 2016)
44 Pages Posted: 6 Nov 2014 Last revised: 28 Feb 2016
Date Written: November 3, 2014
This chapter provides a panoramic account of the making of international criminal law (ICL). The complexity of international criminal lawmaking is demonstrated by the norm profusion and growing specialization within this field, accommodating multiple lawmakers, sources, and enforcement frameworks. The efficacy of legality as the constraint on (substantive) lawmaking is qualified by ICL’s conflicted character as a methodological hybrid which pays allegiance to competing doctrines of sources and interpretation. Nor does legal formalism constitute a true fetter on law-ascertainment: it does not square with the role of, and relationship between, law-creating processes and law-determining agencies in ICL. The latter is ‘autopoietic law’, to the extent it has been made by judges at the interstices of the traditional lawmaking authority. The polycentrism of lawmaking opens ICL, whether judge or state-produced, to legitimacy challenges, relating to the motives that led states to design some ICL regimes as more autopoietic than the others.
Keywords: international criminal law, lawmaking, sources, formalism, precedent, autopoietic system
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