The Two Cultures of International Criminal Law
Forthcoming, Heller, Mégret, Nouwen, Ohlin, Robinson (eds), Oxford Handbook of International Criminal Law (OUP, 2018)
31 Pages Posted: 2 Feb 2017
Date Written: February 2, 2017
This chapter argues that the expansionism of international criminal law has, in the last decade, undergone some dramatic changes. In particular, it demonstrates that the advent of the International Criminal Court (hereafter the ICC) has brought about a severe alteration in how the expansionism of international criminal law is thought and practiced. This claim is articulated around the following contentions. It is argued that from Nuremberg to Rome, the modes of legal reasoning associated with the sources of international law provided the main avenues for the expansion of international criminal law. Because such an expansionist strategy is traced back to the trials of war criminals by the Nuremberg Military Tribunal, the expansionist use of the sources of international law is what is called here the Bavarian culture of international criminal law. It is further argued that the codification conducted by the Statute of the International Criminal Court did not put an end to the expansionism of international criminal law but made it rests on hermeneutic modes of interpretation instead. The resort to hermeneutics rather than modes of legal argumentation associated with the sources of international law with a view to pursuing the progressive expansion of international criminal law is what is called here the Roman culture of international criminal law. This chapter thus tells the story of this shift from the Bavarian culture to the Roman culture of international criminal law, that is from sources-based to interpretation-based expansionism. It simultaneously argues that such cultural revolution was made possible by the rewriting of one of the foundational principles which the field had given to itself, namely the principle of legality.
Keywords: International Law, International Criminal Law, International Criminal Court, Principle of Legality, Sources of International Law, Interpretation, Hermeneutics, Expansionism
JEL Classification: K33
Suggested Citation: Suggested Citation