Tuesday, August 3, 2021
This is the author’s response to the admirable contributions in a symposium on my book, Justice in Extreme Cases: Criminal Law Theory Meets International Criminal Law. The symposium was published in the Temple International & Comparative Law Journal. In response to questions, I clarify some of the arguments in the book.
One area of debate was how we resolve ambiguities in fundamental principles. I argue that we do not mechanically deduce the answers from a master theory; instead we draw on a web of normative clues to flesh out the principles – a “coherentist” method.
Recognizing the underlying method allows for more rigour, transparency, and humility about our conclusions. Other questions relate to command responsibility. In my book, I unpack the debate over command responsibility, in order to demonstrate how early ICL failed to engage in deontic reasoning, and how the resulting contradictions generated so much confusion and controversy today. In this response I clarify the scope and purpose of that case study.