Research Handbooks in International Law series
Edited by Bartram S. Brown
Chapter 1: International Criminal Law: Nature, Origins and a Few Key Issues
Bartram S. Brown The purpose of international criminal law is to establish the criminal responsibility of individuals for international crimes. Public international law is traditionally focused on the rights and obligations of states, and thus is not particularly well suited to this task. It has adapted through a long and slow historical process, drawing upon multiple sources. Many of the chapters in this Handbook explore to some extent the historical development of international criminal law. I will not attempt to summarize that history in detail, but a few historical observations here will help to explain how international criminal law emerged from its sources in public international law, comparative law, international humanitarian law and international human rights law. This will set the stage for an introductory discussion of some key issues in contemporary international criminal law. ORIGINS AND SOURCES Public International Law International criminal law has developed and grown as part of a broader system of public international law which, since 1648, has been based on state sovereignty, including each state’s jurisdiction over its own territory and citizens. A basic system of international law, defining the rights and obligations of states, was needed to recognize and validate this sovereignty, but this decentralized system has no legislature. Instead, international law must be based on the consent of states, arising from one or more of three formal sources: i.e. treaties, customary international law, or general principles of law. Treaties make binding law for those states that agree to accept them. Rules of customary...
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