I. The “Progress” Paradox of International Criminal Law

At the close of World War II, the Allied powers famously put their defeated opponents on trial; the first of these trials was the IMT at Nuremberg. The international criminal law developed and applied following World War II heralded a resurgence in natural (nonpositive) law (Shklar 1964/Reference Shklar1986) as a means to ensure against the totalitarian excesses that led to the war (Primus Reference Primus1996). This emerged from a two-tier challenge faced by the Allied powers seeking to use law at the close of the war to define the coming peace. First, the crimes articulated by the IMT were largely novel and thus faced a deep intellectual challenge in the opprobrium nullem crimen sine lege: proscribing acts retroactively violates key tenets of rule of law systems as well as notions of justice. Second, the crimes committed by Nazi actors whom the Allies sought to prosecute emerged not from brute lawlessness but rather from a strict and terrible lawfulness: the positive law; that is, written, textual law of the Nazi regime had made many of the atrocities perpetrated before and during the war “legal” in Germany.

To circumvent these challenges, the IMT drew on natural law arguments regarding a universally recognizable “human good” (Finnis 1980/Reference Finnis2006; Sohn Reference Sohn1982; Donnelly Reference Donnelly2003) to legitimize its practice (Citron Reference Citron2006). Günther Teubner (Reference Teubner2015, 10) calls this “sociological natural law” because it “uses societal constitutions to reconstruct the rationalities of diverse subsystems within the legal system and transform them into binding principles.” So, for example, the prosecutor (US Supreme Court Justice Robert H. Jackson) promised to prosecute “acts which have been regarded as criminal since the time of Cain and have been so written in every civilized code” (Report to the President on Atrocities and War Crimes, June 7, 1945; http://avalon.law.yale.edu/imt/imt_jack01.asp). Likewise, in its judgment, the IMT argued that in “circumstances [where the defendant] must know that he is doing wrong, … so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished” (September 30, 1946; http://avalon.law.yale.edu/imt/judlawch.asp). In this way, the IMT, facing a significant (and hardly baseless) positive law challenge to its practice, turned its weakness into a strength, rooting its legitimacy not in the past (via precedent or positive law) but rather in the future (via the progressive articulations of human rights it recognized). This fit nicely with the Allies’ self-posturing as lawful and moral peoples (where their law was lawful because it was moral).

The legacy of Nuremberg credits the IMT with applying progressive rule of law practice to establish the historical fact of the Holocaust and democratize Germany. The IMT’s work is understood to have produced the historical truths that assisted political reconciliation; that is, the IMT’s progressive law practice is valued partially because of its argued capacity to produce socially constitutive effects. Thus, although the IMT predated the emergence of the field of “transitional justice” by 40 years, it is recognized as a seminal transitional justice mechanism.

As courts go, the IMT at Nuremberg was deeply flawed; it applied ex post facto laws engineered to include only selected acts and enemies, which would fail to satisfy any Kantian notion of a moral law or any established index of transparency. Yet history has all but forgotten the respected legal theorists who joined the German defendants in accusing the IMT of applying “victor’s justice” (Finch Reference Finch1947; Mettraux Reference Mettraux2008). Instead the IMT has come to symbolize the triumph of the rule of law over vengeance and retribution, “one of the most significant tributes that Power has ever paid to Reason,”Footnote ² where the victorious nations “stayed the hand of vengeance” through the imposition of the rule of law (Bass Reference Bass2000). Modern ICTs today proudly trace their lineage back to the IMT at Nuremberg and use it as a foundation for their own jurisprudence.

Following the IMT at Nuremberg, modern ICTs have not faced the same jurisdictional challenges it surmounted, thanks to the precedential, positive law value of the Nuremberg tribunal itself. Nonetheless, modern international criminal law institutions continue to rely on Teubner’s “sociological natural law” to legitimize their practice, just as the IMT did. Founding doctrinal legitimacy in natural law is continually necessary because, in spite of the positive law example offered by the IMT, ICTs are constantly faced with interpretive challenges that require them to “create” law. This law-creating work is necessary because ICTs are “very thin” with respect to the guidance they give their judges and practitioners regarding legal content (Schabas Reference Schabas2011, 206). To take the ICTY as an example, the original statute consisted of 34 articles and was 11 pages long. Thus while the crimes and the defendants over which ICTs have jurisdiction are elaborated in their statutes, the precise content of ICT jurisdiction has been necessarily, and significantly, developed by their own practice. In order to adjudicate cases, ICTs must necessarily make interpretations of international law, which is predominantly treaty and customary international law (Swart Reference Swart2010). Although ICTs are mandated to apply customary international law and not to invent or create it, in practice, distinctions between “invention” and “application” are contestable (Baker Reference Baker2010).

The “dynamism” that international criminal law has enjoyed as a result of its “openness to judicial activism” (Schabas Reference Schabas2009, 100) meets challenges in the principle of legality, that is, the prohibition on retroactive criminalization (Shahabudden Reference Shahabudden2004). Legal dynamism also plays differently across legal cultures, particularly with regard to the legitimacy of judge-made law where ICT statutes do not explicitly authorize such practice (Schabas Reference Schabas2009, 78). Following Montesquieu (1750/Reference Montesquieu1989), in the civil law tradition the legislative and the executive branches make the law that should be applied by the judicial branch. Thus in civil law systems, courts are not structurally imagined as sites to make, challenge, or change law. This is in contrast to the lawmaking power granted to judges in the common law tradition, where courts are also understood to balance the “tyranny of the majority” through the protection of minority rights (Bickel Reference Bickel1962/1986). Thus ICT invocation of the amorphous source of customary international law in building legal content is similar and familiar to the interpretive practice of common law judges (Schabas Reference Schabas2009, 100), where constitutions “pose relatively few substantive (as opposed to procedural) limits on the state’s criminalizing power” (Lacey Reference Lacey2009, 940). A similar observation is made less flatteringly by Bohlander (Reference Bohlander2014), a civil law–trained attorney, who analogizes the ideological dominance of common law culture and style of argument at international criminal law as “We are the Borg. Resistance is Futile.” It should be noted that these concerns, and their cultural situatedness across the common law/civil law divide, date back to the IMT at Nuremberg, where the French (civil law) participant in the drafting of the IMT Charter challenged the legal basis for the aggressive war charge as but “a creation of four people who are just four people” (cited in Douglas Reference Douglas2001, 52). Indeed, the challenge to sovereignty offered by international criminal law is part of its progress narrative, where the criminalization of “crimes against humanity” requires us to imagine a polity beyond the national. ICTs operationalizing these ideologies arguably assist in constructing such a global community (Duff Reference Duff2009).

“Progress” thus does double duty in international criminal law because it is at once the legitimizing force permitting international legal practice as well as the articulated end goal. International criminal law promises a better, fairer, more just world, an end to impunity, peace in the place of violence: in short, “utopia” (Cassese Reference Cassese2012).Footnote ³ By rooting its legitimacy primarily in forward-looking rights recognition rather than backward-looking positive law or precedent, international criminal law incorporates the iteration of progressive law as central to its enterprise. As ICT judges continue to “develop” law, international criminal law must continue to rely on its “progressive” nature to legitimize the creative, party-driven scope of its legal content.

II. The “Justice” Paradox in International Criminal Law

In representing ICTs as socially constitutive, proponents of the use of law as a didactic social mechanism are relying not only on the moral power claimed for natural law—the legitimizing “progress” narrative discussed above—but also on the social power claimed for criminal law (Cassese Reference Cassese1998, Reference Cassese2013). Writ large, the driving impetus of international criminal law follows a Durkheimian logic (Madsen Reference Madsen2013), wherein the recognition and punishment of violations of “humanity’s law” perform a social function, in this case creating a global rights community (Sikkink Reference Sikkink2011) and articulating a “global conscience” (Ambos Reference Ambos2013). This is how the “progressive law” claims legitimizing international criminal law are intertwined with the claims for ICTs’ didactic, narrative-generating capacity.

The IMT at Nuremberg is celebrated for its articulation of individual criminal responsibility for violations of international humanitarian law (Roht-Arriaza 1990; Bassouni Reference Bassouni2013; Cryer Reference Cryer2014). These are crimes designated as “grave” or “core” and include genocide, crimes against humanity, and war crimes.Footnote ⁴ International criminal law thus criminalizes violations of internationally recognized human rights, situating itself between international law and criminal justice (Fletcher Reference Fletcher2012; Cassese Reference Cassese2013). Lacking its own penology, international criminal law builds instead on the rationales used for applying criminal sanctions at the domestic level (Bassouni Reference Bassouni1993; Cassese Reference Cassese1998, Reference Cassese2013; Damaška 2008; Drumbl Reference Drumbl2008), borrowing the retribution, deterrence, and to some degree rehabilitation/restoration rubrics that underwrite criminal law in domestic jurisdictions.Footnote ⁵

Through the imposition of individual criminal sanctions, international criminal law challenges traditional notions of sovereignty because it displaces state monopoly over the legitimate application of violence (Weber 1919/Reference Weber2013). International criminal law is distinguished from other practices in international law by its “hard law” provisions, its “institutional potential to actually exert force on a rogue government, a warlord, or a perpetrator of crimes against humanity” (Clarke Reference Clarke2009, xii). Where other forms of international law are generally “soft law” constructivist practices organized around the consent of collective organizations, international criminal law assesses criminal liability on individuals. This potential deprivation of liberty is accomplished beyond the boundaries of citizenship, where any person on the planet (provided that jurisdictional obstacles related to the individual tribunal are overcome) can be liable for conduct seriously breaching international humanitarian law.

Unlike liberal sovereign states, however, international criminal law accomplishes its assertion of sovereign-like powers outside of accountability systems, that is, the legitimizing strictures of governance under the Lockean social contract. This accountability problem is deeper and more pervasive than the mere “democratic deficit” from which most courts suffer. Jan Klabbers (Reference Klabbers2015) argues that the partner/agent relationship between international organizations and their funder/directors locks international organizations in accountability-challenging conflicts of interest when the interests of third-party beneficiaries do not align with funders’ interests or priorities. Klabbers defines these accountability problems as pervasive in international organizations generally. Structural accountability deficits are arguably particularly problematic for ICTs because legitimacy before third parties is central to judicial capacity. Most ICTs answer directly to the UN Security Council, to which they make annual reports and from which they receive the bulk of their funds.Footnote ⁶ In this regard, ICTs face particular existential pressures that distinguish them from domestic criminal courts, where ICTs must achieve convictions in order to justify the public resources expended on international trials (Brannigan Reference Brannigan2011).Footnote ⁷

In this supra-sovereign landscape, ICTs mete out sanctions that deprive individuals of their liberty. Punishment can be effectuated by any powerful body by any means for any reason; one recalls Foucault’s gruesome opening to Discipline and Punish (Reference Foucault1979/1991). International criminal law claims to administer justice, however, and through this claim it places itself in a liberal, Kantian tradition (Roth Reference Roth2011). Hart’s classic Punishment and Responsibility (Reference Hart1968) defined the normative justifications of “morally tolerable” punishment within the confines of the liberal state (Lacey Reference Lacey2009, 948). In the liberal state, constructed on a social contract between governing powers and the governed, the central purpose of punishment is to communicate censure to offenders; punishment must recognize and reaffirm the citizen’s personhood as within the community (Duff Reference Duff2009, Reference Duff2013).

We thus see two challenges to ICTs’ “justice” practice. First, there are the accountability issues identified by Klabbers and the accompanying challenge they offer for the question of community. International criminal law, operating in the name of mankind, imagines part of its constructive project as the creation of a recognized common human community. Yet in his classic critique of international criminal law, Koskenniemi (Reference Koskenniemi2002, 11) effectively queries the possibility of communal existence, “beyond the elusive and self-congratulatory ‘international community.’” Resistance to ICTs within regions they are designed to assist, even among groups best poised to favor international justice (Clark Reference Clark2014), further indicates obstacles regarding the formation of such a community.

Second, there is a challenge related to legal content. Part of the “communication” inherent in what criminal law theorists such as Hart, Duff, and Lacey identify as “morally tolerable” criminal justice systems concerns their capacity to adjust or align the conduct to be criminalized. Domestically capacity resides in structural mechanisms: at the level of the state, politicians, judges, and state-appointed lawyers and at the level of the citizen, through juries or lay judges who are understood to introduce the capacity to apply shifting social expectations to doctrinal definitions (Dzur Reference Dzur2012). This feedback loop is an essential element of how domestic criminal justice systems serve to represent and create community and permits a certain flexibility, mobility, and responsiveness to criminal justice. Where law protects rights, rights are conceived as permitting derogation when confronted with other rights that may take precedence (Berlin Reference Berlin1969), and in this way sovereign polities negotiate internal conflicts of interest (Shapiro Reference Shapiro1986; Kymlicka Reference Kymlicka1989).

International criminal law, on the other hand, is constructed on “nonderogable” rights, so-called core rights that are immutable, inalienable, universal, and absolute, admitting no contingency or context. More critically, the scope and power of international humanitarian law lies precisely in this nonderogable construction, where the “nonderogable” nature of the right itself provides the legitimizing animus for the application of international criminal law. This absolute and universal status of human rights secures the legitimacy of those institutions that would try violations of these rights through processes approximating domestic criminal law trials, trumping positive law particulars that might prevent protection of nonderogable rights through law. International criminal law offers no resolution for the resulting confrontation between the nonderogation standard of human rights and the justice and fairness compromises present at domestic criminal law. The reason is that such resolution is necessarily political, not doctrinal, and international criminal law rejects political compromise as a source of legitimacy.

This is the “justice” paradox of international criminal law, and it emerges from conflating human rights, which “should be read expansively to realize their object and purpose” (Roth Reference Roth2010, 286) with law, which gains its legitimating authority through rule of law practices based on predictability and accountability. Domestic criminal justice processes demonstrate how justice is a process and not a destination (Clarke Reference Clarke2009), where political ideas and ideals are articulated, tested, and reformulated in an ongoing conversation. Drawing on natural law, international criminal law holds that there is a universal justice that all human beings (should) share. This moves away from the dialogue present in the operationalization of state power in liberal democracies, toward a monologue.

The “justice” paradox is further amplified by the absence, at international criminal law, of accommodation, acknowledgement, or theory regarding what Roth (Reference Roth2010) has termed “ruthless” behavior on the part of states. Ruthless behavior consists of acts that, though “presumptively wrongful in both moral and legal terms,” nevertheless are “substantially related to cognizable governmental (or insurgent) objectives” (239). Roth’s “ruthless” category highlights how justice itself is, at least in practical terms, largely a political formulation; for most citizens in most situations, “justice” is what the state so defines (Sa’adah 2006). As discussed above, international criminal law’s foundational impetus necessarily rejects subjective constructions of justice. Yet is also legitimizes itself through a criminal justice rubric, in which it operates on the principle that it punishes conduct that “tolerably just” (Duff Reference Duff2013, 175) states would punish if they could, and where the dissolution of the state’s sovereign capacity is arguably what makes external criminal application necessary.Footnote ⁸ A mirror of this conflicted stance is offered by transitional justice practice, which also simultaneously reaches to an imagined objective (i.e., universal) justice standard to legitimize its work while simultaneously founding its practice in the subjective reality of the necessity to lay down new legal practices, ideologies, and/or institutions in the wake of violent conflict or other forms of social dissolution.

Criminal law practice in Duff’s “tolerably just” states represents liberalism in action, where law is a necessary and effective space to address (if not fully redress) social injustice or imbalance. International criminal law, constructed in the shadow of this liberal outcome, has thus far neglected to engage in liberalism’s practices. Rather, international criminal legal practice, through the entirety of its existence, has engaged in subjective imbalances that violate the rule of law tenets that liberal practices are designed to effect. In the following section, the article examines the articulation, evolution, and attenuation of the ICTY’s joint criminal enterprise jurisprudence as a paradigmatic doctrinal development illustrative of both the progress and justice paradoxes present in international criminal law.

III. International Criminal Law’s Paradoxes in Action: The Emergence and Evolution of the ICTY’s Joint Criminal Enterprise Doctrine

Joint criminal enterprise (JCE) is a modern, contentious formulation of international criminal law that has attracted volumes of scholarly attention.Footnote ⁹ It is a theory of liability emergent from a judicial construction of the ICTY statute’s language of “commission”; that is, JCE is a means of “doing” or “performing” a crime.Footnote ¹⁰ JCE represents the resolution of a tension between international criminal law’s rejection of and simultaneous requirement for some recognition of “guilty associations.” The first attempt to codify guilty associations at international criminal law was rejected by the IMT at Nuremberg, and this legal heritage has remained intact through the ICTY statute, which specifically forbids conspiracy or guilt by association. This reflects yet another tension between the two dominant legal traditions affecting the ICTY: the common law tradition of the United States, which recognizes vicarious liability for conspirators (Pinkerton v. U.S., 328 U.S. 640 [1946]), and the civil law tradition, which generally does not (Ohlin Reference Ohlin2011).

The articulation of JCE has enabled an extraordinarily broad establishment of culpability in ICTY practice (Danner and Martinez Reference Danner2005; Hamdorf Reference Hamdorf2007; van Sliedregt Reference van Sliedregt2007; Van der Wilt 2009) and resolved an endemic evidentiary problem plaguing crimes committed in times of widespread social violence. This bonanza is widely recognized: at the ICTY, JCE is sometimes privately referred to as “just convict everybody.”Footnote ¹¹ Other ICTs have rejected JCE, however,Footnote ¹² and the ICTY’s own jurisprudence in the past 5 years suggests that it may ultimately reject its own doctrine as well. Recent JCE cases have scaled back the scope and power of the doctrine considerably. In so doing, this section argues, ICTY chambers have not resolved issues related to JCE, but rather deepened them. While early JCE doctrine did not leave room for cogent defense (thereby amounting to a form of strict liability), later JCE cases restricting the doctrine have done so through unusual, unprecedented rationalizations, thus reducing the doctrine’s predictability. Challenges to the substance and application of the JCE doctrine illustrate international criminal law’s paradoxes at work.