Hoffmann: Freezing or Consolidating the Development of War Crimes Law? The International Criminal Court and the Role of Judicial Innovation

Tamás Hoffmann (Corvinus Univ. of Budapest) has posted Freezing or Consolidating the Development of War Crimes Law? The International Criminal Court and the Role of Judicial Innovation (in ICC Jurisprudence and the Development of International Humanitarian Law, Martin Faix & Ondřej Svaček eds., forthcoming). Here's the abstract:

After the adoption of the Rome Statute of the International Criminal Court, several commentators claimed that the Statute was specifically drafted to curtail judicial innovation following a period of exponential expansion led by the jurisprudence of the International Criminal Tribunal of the Former Yugoslavia (ICTY). One particularly vicious criticism was voiced by Alain Pellet, who accused the drafters of the statute that as a ‘result of a veritable brainwashing operation led by criminal lawyers, with the self-interested support of the United States […] have frozen customary definitions in a process of rapid evolution’. This chapter aims to further examine the question of whether the institutional design of the Rome Statute of the International Criminal Court has indeed restricted the development of international criminal law, focusing on the field of war crimes law. It first analyses the relationship between international humanitarian law and international criminal law, then addresses the historical role of the Nuremberg Tribunal and the International Criminal Tribunal for the Former Yugoslavia in the development of war crimes law. Finally, it zeroes in on the Rome Statute and investigates whether the crime definitions and the emphasis on the principle of legality have actually curbed the potential for judicial innovation.