Patrick Keenan (University of Illinois College of Law) has posted The Slippery Concept of Object and Purpose in International Criminal Law on SSRN. Here is the abstract:
International criminal tribunals often rely on their interpretation of a treaty or statute’s “object and purpose” to determine the meaning of important provisions. This inquiry, which comes from the Vienna Convention on the Law of Treaties, allows judges to supply meaning to terms that might be vague, confusing, or simply new. As useful it has it has been as a kind of doctrinal lubricant during international criminal law’s sometimes-creaky early years, the time has come for a closer look at the concept of object and purpose as the field approaches the end of its third decade of robust use. Object and purpose considerations appear to point in the same direction in almost every case: toward more culpability for defendants, toward expanding liability to those further from the crime, toward reduced evidentiary burdens on prosecutors. This article critically analyzes the ways that the object and purpose inquiry has been deployed in cases. In practical terms it is unprovable at trial and uncontestable on appeal. Coupled with the reality that the object and purpose of most international criminal statutes is taken to be the expansion of liability or the easing of the prosecution’s burden, reliance on the object and purpose in this way amounts to a significant disadvantage for defendants. This article identifies the special problems with interpretation in international criminal law and analyzes the role of object and purpose in these issues. The article argues that it is possible to rationalize the use of object by making it less ad hoc, more predictable, and more attentive to the social role of international criminal law.
