Cave Principia Generalia! Two Problems with International Criminal Law's General Part

Abstract

There is now a broad literature on how states have attempted to implement the Rome Statute of the International Criminal Court into their domestic legal orders, and the problems that they face translating international criminal law principles into domestic criminal regimes. However, this body of work tends to suffer from two limits. First, much of the academic focus on domestic implementation has been restricted to the special part of the criminal law, downplaying the importance of international criminal law's general part. Second, scholarly analysis tends to examine the issue of implementation from the perspective of states, loosing site of the impact of (non)implementation on the international system.This working paper seeks to remedy both of these shortfalls by examining the theoretical problems raised when the general principles of criminal law contained in the Rome Statute are with the general principles of individual states. These difficulties are examined both from the perspective of states - where misalignment raises questions about complementarity and the duty to prosecute - and the international system as a whole. In the latter case, misaligned general parts raise serious questions about both the distribution of responsibility for prosecuting core crimes, and the ability for international criminal tribunals to fulfill many of their purported goals.As compared to misalignment in the special part of international criminal law, general part differences present particularly intractable problems for both states and international institutions. Absent any easy solution to problems of misalignment, actors in the field of international criminal law ought to recognize the limits to the project of international criminal justice that general part misalignment represents.