New Essay on SSRN — “The Rome Statute in Comparative Perspective”

I have posted a new essay on SSRN, a draft chapter of a book that Markus Dubber and I are editing for Stanford University Press entitled “The Handbook of Comparative Criminal Law.”   In addition to my chapter, which is something of an outlier, the book contains 17 chapters on the substantive criminal law of individual countries.  We have attempted to include a wide variety of national legal systems, including (inter alia) Argentina, Japan, China, Russia, India, Iran, Spain, Egypt, and South Africa.

Here is the abstract of my chapter:

The Rome Statute of the International Criminal Court is both inspiring and frustrating. On the one hand, by providing detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility, the Statute represents the international community’s most ambitious attempt to create a general and special part of international criminal law. On the other hand, most of the drafters of the Statute were diplomats who had no practical criminal law experience of any kind, much less academic expertise in international criminal law or comparative criminal law. As a result, the Rome Statute’s substantive provisions are often confusing, contradictory, and of uncertain application – an “unsystematic conglomeration from a variety of legal traditions,” as one scholar has memorably put it.

This draft book chapter attempts to provide a systematic and comparative overview of the substantive criminal law of the Rome Statute. Section I provides an introduction to the Statute: its drafting history, jurisdictional principles, sources of law, and rules of procedure and evidence. Section II discusses the Statute’s general part: theories of punishment, liability requirements (acts and omissions, material and mental elements, modes of participation), defenses, and sanctions. Finally, Section III examines the Statute’s special part: the conceptual structure of the crimes within the jurisdiction of the Court and the crimes themselves: genocide, crimes against humanity, war crimes, and aggression.

The chapter is aimed primarily at domestic criminal law scholars, particularly those with an interest in comparative criminal law. But it should be of interest to international criminal law scholars, as well.

As always, comments and criticisms are most welcome.