The Dangers of the Obvious but Often Disregarded Details in the International Criminal Law Demarcation Debate: Norm-Integration and the Triple-Thesis ‘Argument’

By: Anja Matwijkiw

In series: Guest Researcher Publications

Publisher: International Criminal Law Review

Page Reference: (2019) 1-25

Number of pages: 25

Keywords: demarcation debate, international criminal law (icl), legal doctrine, rights, stakeholder jurisprudence



When responses to international crimes are managed in terms of post-conflict justice, this event may end ‘the demarcation debate’ before it has begun, thereby rendering it superfluous among legal scholars. This is to say that the transition from theory to reality arguably has the effect of cancelling any sharp distinction between international criminal law, international human rights law and international humanitarian law, as well as extending international criminal justice into the moral territory.

Certainly, this is a premise for the dual-aspect defense of those rights that help to explain the non-separation. However, to the extent that the defense discords with traditional assumptions, relevant aspects of pro-separation reasoning must be considered. These are accommodated under the triple-thesis whereby the unequal status of different (rights-)categories limit norm-integration. The author’s account of the competing programs shows a series of flaws in the case of the triple-thesis doctrine, amounting to a vicious circle ‘argument’.

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