Why International Criminal Law Can and Should be Conceived With Supra-Positive Law: The Non-Positivistic Nature of International Criminal Legality

Resumo

International criminal law (ICL) is an achievement, but at the same time a challenge to the traditional conception of the principle of legality ( lex praevia , scripta , and stricta – Sect. 1). International criminal tribunals have often based conviction for international crimes on unwritten norms the existence and scope of which they have failed to substantiate. In so doing, they have evaded the objection that they were applying ex post facto criminal laws. This approach, the relaxation of the concept of law by including norms whose existence is doubtful, has apparently served to maintain a concept of strict legality, but it is unsatisfying (Sect. 2). In my opinion, the strict principle of legality that has linked its absolute validity to the positivity of law is not the correct premise. It makes sense to state that positivity and validity do not necessarily go hand in hand (Sect. 3). Applied to ICL, this means that it is neither necessary nor convincing to “conceal” supra-positive law as positive law, as some decisions of the international criminal tribunals do. For this reason, I consider that Radbruch’s formula, consisting in admitting that there are supra-positive limits which positive law must respect in order to be valid, is well-founded (Sect. 4). The path taken by this significant philosopher of law is methodologically convincing, and it squarely faces the problem of the value of positive law. Nevertheless, if we admit Radbruch’s formula and thereby the limited value

Tipo

Artigo

Área

Direito

Ano

2023

Idioma

Inglês

Licença

CC BY

DOI

10.1007/s11572-022-09628-6

Como citar (ABNT)

PASTOR MUÑOZ, Nuria. Why International Criminal Law Can and Should be Conceived With Supra-Positive Law: The Non-Positivistic Nature of International Criminal Legality. Criminal Law and Philosophy, v. 17, n. 2, p. 381-406, 2023. DOI: 10.1007/s11572-022-09628-6.