How to Read International Criminal Law: Strict Construction and the Rome Statute of the International Criminal Court
Caroline Davidson (2017) "How to Read International Criminal Law: Strict Construction and the Rome Statute of the International Criminal Court," St. John's Law Review: Vol. 91: No. 1, Article 3.
68 Pages Posted: 16 Nov 2017
Date Written: November 14, 2017
The Rome Statute of the International Criminal Court (“ICC”) purports to break with a long tradition of judicial lawmaking in international criminal law. It proclaims that the crime definitions in the statute should be strictly construed and that ambiguities in the statute should be read in favor of defendants. This Article critically evaluates the tension between these guarantees and a statute that is often vague, sometimes ambiguous by design, and explicitly directs judges to consider general principles of international and even domestic law. How is a judge to strictly construe a general principle? To help answer this question, this Article examines the possible justifications for strict construction and calls on the ICC to embrace these rationales when evaluating outside legal sources. Namely, courts should interpret crimes in a manner that avoids usurping the authority of states, avoids unfair surprise to defendants, and enhances the clarity of international criminal law. Ultimately, the Article offers a new reading of strict construction that better accommodates the competing principles of international criminal law.
Keywords: international criminal law, human rights, strict construction, lenity, ICC, International Criminal Court
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