Vasiliev: The Making of International Criminal Law

Sergey Vasiliev (VU Univ. Amsterdam – Law) has posted The Making of International Criminal Law (in Research Handbook on the Theory & Practice of International Lawmaking, C. Brölmann & Y. Radi eds., forthcoming). Here’s the abstract:

The making of international criminal law (ICL) presents a unique configuration of law-creating processes and law-determining agencies, which underlines its distinct character as a body (or sub-system) of international law. This Chapter provides a panoramic and critical account of international criminal lawmaking, with a focus on the methodological problems raised by the genesis and evolution of ICL. In an attempt to bring closer the formalist and realist views, the Chapter exposes the complexities of the concept and phenomenon of international criminal lawmaking and highlights its major causes – the unparalleled normative profusion, sophistication, and ever-increasing specialization of this field, which accommodates multiple lawmakers, sources of law, and institutional enforcement frameworks. The Chapter addresses the function of legality as a normative constraint on the making of substantive ICL. It shows that the efficacy of that function has been afflicted by the conflicted character of ICL as a methodological hybrid pulled apart by the contest between incompatible doctrines of sources and methodologies of legal interpretation. While optimism regarding its future status in ICL can only be moderate, the Chapter makes a plea for resuscitation of the principle in the ICL domain. Next, the Chapter turns to the formal constraint on international criminal lawmaking: the orthodox doctrine of international law sources (as opposed to ‘subsidiary means’) and underlying methods of law-ascertainment. It interrogates the notion that old legal formalism squares with the actual role of, and relationship between, the law-creating processes and law-determining agencies in ICL. If legal formalism is to serve as an adequate descriptor and effective constraint on the genesis of law in this field, it is in need of careful recalibration in line with the nature of ICL as criminal law. Finally, since ICL has to a substantial degree been forged by international criminal tribunals making law at the interstices of traditional lawmaking authority, the Chapter applies the concept of ‘autopoietic law’ to the judicial production of ICL. With international criminal lawmaking being a polycentric enterprise, the legitimacy of judge-made autopoietic quasi-law remains vulnerable to challenges. The Chapter argues that recurring questions about the legitimacy of ICL, whether judge- or state-produced, can be attributed to the motives that led states to design some ICL regimes to be considerably more autopoietic than the others.