Sergey Vasiliev

On Trajectories and Destinations of International Criminal Law Scholarship

This editorial addresses the current state and prospects of international criminal law (ICL) scholarship. The moment is opportune for such a reflection. The questions raised by the production and dissemination of international legal scholarship have gained prominence lately and the professional functions of international legal scholars have been the subject of renewed interest and debate. To give an impulse to a similar debate in ICL, I will try to capture the zeitgeist of its academia and offer some observations on the positioning of ICL scholarship vis-a-vis practice. Perspectives from this specialized field may enrich the existing conceptualizations of international legal scholarship and provide a new angle on its place within the profession.

International Criminal Tribunals in the Shadow of Strasbourg and Politics of Cross-Fertilization

This article takes a critical view on the debates around the phenomenon of jurisprudential cross-fertilization between international criminal tribunals and human rights courts, in particular the European Court of Human Rights. Asymmetries of cross-citation and influence along this axis of cross-judicial communication can be explained by distinct judicial styles and uneven mutual relevance, rather than by any sort of hierarchy. However, the discourse surrounding the tribunal-oriented ‘cross-fertilization’ has a normative pull that introduces an informal hierarchy, which is a means to ensure the tribunals’ conformity with human rights law. However valid its agenda may be, this approach is legally groundless and incompatible with the terms of transjudicial communication and it underestimates the pluralist nature of international human rights, among other discontents. Ultimately, it is also ineffective in serving its main ideological purpose.

The Making of International Criminal Law

This chapter provides a panoramic account of the making of international criminal law (ICL). The complexity of international criminal lawmaking is demonstrated by the norm profusion and growing specialization within this field, accommodating multiple lawmakers, sources, and enforcement frameworks. The efficacy of legality as the constraint on (substantive) lawmaking is qualified by ICL’s conflicted character as a methodological hybrid which pays allegiance to competing doctrines of sources and interpretation. Nor does legal formalism constitute a true fetter on law-ascertainment: it does not square with the role of, and relationship between, law-creating processes and law-determining agencies in ICL. The latter is ‘autopoietic law’, to the extent it has been made by judges at the interstices of the traditional lawmaking authority. The polycentrism of lawmaking opens ICL, whether judge or state-produced, to legitimacy challenges, relating to the motives that led states to design some ICL regimes as more autopoietic than the others.

V International Criminal Court (ICC)

This is the first contribution on the work and progress of the ICC, which occupies an important place in the protection of human rights. Since its establishment at the diplomatic conference in Rome in the summer of 1998, efforts were aimed at turning the paper institution into a functioning court as soon as possible. With three to five cases on the agenda and an ever-expanding institution supported by a growing number of States, we can safely say that the ICC lives up to the expectations in this moment of time. This first overview and analysis of developments is not confined to the last couple of months, but seizes the opportunity to select a number of important general issues since the creation of the Court. As those will exceed the scope of this contribution, a number of them will be dealt with in the present contribution whereas the next two contributions will deal with the remaining points of general interests, this in addition to an overview and analysis of the latest developments. As the Court is not yet producing a significant amount of cases, I have opted at the present stage for offering to the NQHR two contributions a year.