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The article critically appraises Carl Schmitt’s 1945 expert opinion on The International Crime of the War of Aggression and the Principle ‘nullum crimen, nulla poena sine lege’. Each element of Carl Schmitt’s expert opinion is subjected to close scrutiny and contextualised with references, where appropriate, to the icc’s recently acquired jurisdiction to try crimes of aggression. It is shown that Schmitt’s legal arguments are on the whole tenable but that the expert opinion’s assumptions about the position of the ability of ‘ordinary’ citizens to assess their own actions are very problematic.
Abstract
The text casts doubt on the utility of proportionality tests to resolve conflicts between peremptory norms of public international law with reference to an argument advanced by João Ernesto Christófolo. Responding to Christófolo, the text maintains that subjecting conflicts between peremptory norms to a proportionality analysis entails judicial law-making, does not safeguard the interests protected by peremptory norms and that the use of proportionality tests cannot be justified with reference to the desired completeness of international law. Instead, the text argues that conflicts between peremptory norms should be dealt with head-on by openly acknowledging the existence of an irresolvable norm conflict and that, if at all, proportionality tests must be applied with utmost care to avoid that the interests of those undertaking a proportionality analysis prevail over the interests of those whose interests the balanced norms in questions are intended to protect.