A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court

This article seeks to initiate a dialogue within international criminal law (ICL) on treaty interpretation. The state of the art is reviewed and three fundamental interpretive dilemmas are identified and analysed. In the author's view, these dilemmas need to be addressed before a method of interpretation for crimes in Articles 6, 7, and 8 of the Rome Statute of the International Criminal Court can be formulated and operationalized. The normative dilemma highlights how the normative tensions underlying ICL might be perpetuated by the interpretive imperatives in Articles 21(3) and 22(2) of the Rome Statute. The interpretive aids dilemma concerns the respective roles of the Elements of Crimes and custom as aids to interpreting crimes in the Rome Statute. The inter-temporal dilemma pertains to whether these crimes are frozen or are to be interpreted in light of relevant and applicable legal developments. Throughout, the aforementioned dilemmas are grafted onto Article 31 of the Vienna Convention on the Law of Treaties to illustrate that they are, at their core, universal problems of interpretation.