Non-State Actors in International Criminal Law

Abstract

The process by which the normative content of international criminal law is formed is essentially an ad-hoc process of comparative law in action. Because of the nascence and rudimentary nature of this branch of international law, much is left unclear in the statutes of international tribunals. Applicable treaties deal with some aspects of the crimes but leave much of the criminal law doctrine up to individual participants in the process of law-making.

What results is an inevitable divergence in the understanding, development and application of some normative notions such as modes of responsibility. Individual participants (judges, lawyers, academic commentators) apply notions from the domestic systems they are familiar with, and diverging views of the law ensue.

This borrowing from domestic systems can contribute to the formation of the normative content of international criminal law - in fact it has always done so - however the critique I have is that the selection and application can be arbitrary and threaten due process concerns, which are paramount in any criminal justice system. The solution I propose is to consciously apply (and perhaps require) a comparative law methodology as a kind of minimum restraint on this process.

Keywords: non-state actors, participants, law-making, international criminal law, theory, sources