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Casuistry of the International Criminal Law

TitleCasuistry of the International Criminal Law
ResearcherMarjolein Cupido

Short description of the project

Within the academic discourse it is generally recognized that because of the ‘open texture’ of law international criminal courts and tribunals do not merely apply, but also (progressively) interpret and develop the law. Thus, they significantly contribute to the creation and explication of international criminal law. Legal guidance regarding the way in which the law should be applied, substantiated and developed is however very limited as an extensive corpus of law is lacking. Consequently, it is argued that current practices within the ICC and the ad hoc tribunals have led to inconsistent and unsubstantiated interpretation of international criminal law and unreasonable expansion of criminal accountability. This is particularly problematic in the light of the principle of legality.

This study aims at guiding and systemizing judicial reasoning by means of the introduction of a method of interpretation. It thereby derives from the thought that judicial reasoning contains casuistic elements. As a method of reasoning, casuistry presumes that the law is not fixed in general doctrines, but develops and acquires further meaning each time that rules are applied to individual cases. In this view, decisions can be validly substantiated by means of analogous reasoning, carrying over the arguments used to resolve earlier similar problems and reapplying them in new, but essentially comparable situations. Thus, the casuistic methodology could provide useful instructions to establish a more coherent and substantiated yet flexible practice of judicial reasoning within the field of international criminal law. 

In the first stages of the research efforts will be made to provide insight into the role of casuistry for judicial reasoning in international criminal law. In that regard a literature study, case law analyses and empirical research will be conducted to establish in which way casuistic theory influences the case law and judicial practice of the ICC, ICTY and ICTR. Subsequently, the theoretical research, case law analyses and empirical studies, will be united in a casuistic method of interpretation which provides methodological and legal instructions to systemize for the application and development of international criminal law concepts and the substantiation of judicial decisions.

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