In this article, I argue that two prominent frameworks for evaluating and developing international criminal law (ICL) can be reconciled into a new framework that absorbs the best insights of its predecessors. We cannot simply transplant fundamental principles from national legal systems, because they may be inapposite in the unusual contexts faced by ICL. However, this novelty does not mean that we are free to simply abandon culpability, legality, and our basic underlying commitment to the individual. Instead we must explore what that deontic commitment might entail in these new contexts. My primary aim is to show the possibility of bridging the apparent normative impasse. I also briefly sketch out the proposed framework, and suggest that it can generate new questions for current controversies in ICL. As an interesting by-product, the examination of ‘abnormal’ criminal law can raise new questions for general criminal-law theory, by exposing subtleties and parameters that we might not have noticed in a study of ‘normal’ contexts.
* [[email protected]] Queen's University (Canada), Faculty of Law. Research for this project was facilitated by funding from the Social Sciences and Humanities Research Council of Canada. I benefited from thoughtful comments from Mark Drumbl, Chris Essert, James Stewart, Malcolm Thorburn, and the participants of workshops at the University of Toronto and Queen's University. Many insightful questions and comments could not be addressed in this space; this article merely introduces a framework, and further elaboration will be provided a forthcoming book-length treatment of the project. I am grateful for the valuable research assistance of Anne Marie Heenan, Avene Derwa, Stephanie Ford, and Ted Brook.