The Identity Crisis of International Criminal Law

TLDR

International criminal law claims to embody liberal criminal justice principles, yet recent scholarship questions whether its doctrines truly uphold those principles. The article investigates how ICL’s discourse, particularly its assumptions and argumentation, may undermine its liberal aims by revealing three modes of human‑rights liberalism that erode criminal‑law liberalism. It identifies three mechanisms—interpretive approaches, substantive and structural conflation, and ideological assumptions—that allow human‑rights liberalism to erode criminal‑law liberalism. The study concludes that ICL’s reliance on national criminal law and international human‑rights law has created an identity crisis, leading it to adopt illiberal doctrines that contradict its foundational principles.

Abstract

Abstract The general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. Recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. This article scrutinizes the discourse of ICL – the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims. This article argues that ICL, in drawing on national criminal law and international human rights law, absorbed contradictory assumptions and methods of reasoning. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include interpretive approaches, substantive and structural conflation, and ideological assumptions. The identity crisis theory helps to explain how a system that strives to serve as a model for liberal criminal justice systems has come to embrace illiberal doctrines that contradict the system's fundamental principles.