The Idealist Advocate Meets the Legal Positivist. Untangling Christine Van den Wyngaert’s Approach to Interpreting 
International Criminal Law

Abstract:Judge Van den Wyngaert's positivist approach to judicial interpretation will be demonstrated and analyzed by discussing her Minority Opinion to the Katanga Trial Judgment (the Katanga Opinion) and her Concurring Opinion to the Ngudjolo Trial Judgment (the Ngudjolo Opinion). In both Opinions, Judge Van den Wyngaert essentially argued that the majority interpretations were inconsistent with how the relevant legal provisions could be understood according to their ordinary meaning. This contribution discusses her views, while at the same time contrasting them with relevant but divergent views of other ICC Judges. Where the Katanga Opinion (on the organization requirement needed for crimes against humanify) only suggests the kind of approach to legal interpretation Van den Wyngaert has in mind, the Ngudlolo Opinion (on modes of liability under the ICC Statute) more explicitly addresses her methodology of interpretation. We start the discussion by elaborating on the relevant ICC jurisprudence on the organizational requirement for crimes against humanity, and end with elaborating on the Katanga Opinion (section 2 to 6). Subsequently, the same exercise will be carried out for what is concerned the relevant ICC jurisprudence on the modes of liabiliry and the Ngudjolo Opinion (section 7 and foll.).

ISBN:9789046608890

Publication year:2017

Accessibility:Closed

Review status:Peer-reviewed