This presentation critiques international criminal law’s most sacred cow: the idea that an international crime is an act that is directly criminalized by international law, irrespective of domestic criminalization. I will argue that insofar as we take positivism seriously (and we are all good positivists now), we must adopt a very different definition of an international crime: as an act that international law obligates all states to criminalize and prosecute. This state-centered definition, which I call the “national criminalization thesis,” is quite radical by contemporary ICL standards, but it actually has a long pedigree – one that dates back to Grotius and was defended in the 1950s by a number of scholars, most notably Georg Schwarzenberger. There is no question, though, that (re)adopting the national criminalization thesis would force us to rethink some of the fundamental assumptions of ICL, particularly the international status of the crime of aggression and the rarely-questioned distinction between international and transnational crimes.
Prof. Kevin Jon Heller holds the chair in criminal law at SOAS, University of London. He has a PhD in law from Leiden University, a JD with distinction from Stanford Law School, an MA with honours in literature from Duke University, and an MA and BA in sociology, both with honours, from the New School for Social Research. Kevin has published three books and more than 25 academic articles on international criminal law, international humanitarian law, and comparative criminal law. His books include The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford University Press, 2011); The Hidden Histories of War Crimes Trials (OUP, 2013) (edited with Gerry Simpson); and The Handbook of Comparative Criminal Law (Stanford University Press, 2011) (edited with Markus Dubber). He is currently writing a book entitled A Genealogy of International Criminal Law, which will be published by OUP in 2017, and is co-editing the Oxford Handbook of International Criminal Law, which will also be published by OUP in 2017. For the past eleven years, he has been a permanent member of the international-law blog Opinio Juris.