International Criminal Law and Its Paradoxes: Kerstinbreecarlson

International Criminal Law
and Its Paradoxes

I M P L I C AT I O N S F O R I N S T I T U T I O N S A N D P R A C T I C E
KERSTIN BREE CARLSON, iCourts, University of Copenhagen,

and the American University of Paris
ABSTRACT
This article challenges international criminal tribunals’ (ICTs) capacity to perform the socially constitutive
work of transitional justice. Highlighting paradigmatic ICT jurisprudence, I show that both the “progress”
and “justice” constructs central to the work and legitimacy of international criminal law are unrealizable
under current ICT practice. This is due to international criminal law’s foundational, legitimizing basis
in natural law rather than political liberalism. I call for a revision of ICT institutional accountability struc-
tures.
In the 1990s, international criminal law practice exploded with the construction of ad hoc
tribunals to address atrocities committed in Yugoslavia, Rwanda, and elsewhere, leading to
a permanent International Criminal Court (ICC). International criminal tribunals (ICTs)
are argued to provide something broken societies cannot do for themselves: an honest ac-
counting of past events and a clear demarcation of right and wrong, delivered by rule-
respecting institutional models of good governance (Cassese 1998; Leebaw 2011). This
narrative, didactic, “norm projecting” (Luban 2010) capacity is central to the stated ob-
jectives of modern ICTs as “transitional justice” mechanisms, where “transitional justice”
is a normative and theoretical set of policy objectives designed to assist societies to move
from repressive to rights-respecting forms of governance (Quinn 2009, 3; Israël and Mou-
ralis 2014; Daly 2015). That ICTs’ determinations are imagined to resonate beyond their
This research is funded by the Danish National Research Foundation grant DNRF105 and conducted
under the auspices of iCourts, the Danish National Research Foundation’s Centre of Excellence for In-
ternational Courts. The author wishes to thank Brooke Harrington, David Klein, and the anonymous
reviewers at the Journal of Law and Courts for editorial suggestions. Contact the author at kerstin.bree
.carlson@jur.ku.dk.
Journal of Law and Courts (Spring 2017) © 2017 by the Law and Courts Organized Section of the American Political Science Association.
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34 | JOURNAL OF LAW AND COURTS | SPRING 2017
own courtrooms derives from the belief that courts are socially constitutive (Scheingold
1964/2004), as well as the authoritative position of law (Hagan and Levi 2005).
Modern social scientists considering ICT impact have generally found at best only
modest gains in the peace or democracy that they associate with ICT practice (Nettlefeld
2010; Nalepa 2012; Clark 2014). Others report stasis as regards the liberalizing project
with which ICTs are tasked (Ivković and Hagan 2011) or critique the project as funda-
mentally untenable (Rabkin 2007). Taken together, scholarly reports coalesce around
the assertion that the complex social and political task of constructing rule of law, rights-
respecting democracies is too complex to be adequately addressed by ICTs (Vinjamuri
and Snyder 2015). Most demonstrative of this turn may be the flight from broad claims
for ICT capacity made by practitioners themselves. In interviews conducted at the Inter-
national Criminal Tribunal for the Former Yugoslavia (ICTY), respondents ranged from
noncommittal to hostile when queried on the topic of the ICTY’s role in political recon-
ciliation in the former Yugoslavia,1 a far cry from Akhavan’s (1998, 2001) classic and oft-
cited claims regarding ICTs’ potential to communicate liberal values. Nonetheless, inter-
national criminal law continues to operate in “humanity’s” name (Teitel 2011; Hopgood
2013; Krever 2013), professing to simultaneously reflect and construct a common, global
community. There is thus an ever more definitely mapped chasm between international
criminal law’s assertions of universality and its practice and outcomes.
This article argues that the claims to “progress” that legitimize the practice of interna-
tional criminal law simultaneously and necessarily undermine its communicative capacity,
demonstrating what the article labels the “progress” and “justice” paradoxes of interna-
tional criminal law. Section I describes the legitimizing role the production of “progres-
sive” law plays for ICTs, beginning with the seminal International Military Tribunal
(IMT) at Nuremberg; Section II contrasts this construct against domestic criminal justice;
Section III concludes with a case study demonstrating the argument; and the conclusion
(Sec. IV) calls for practices designed to address this structural failure by operationalizing
international criminal law through processes of political liberalism. Through this anal-
ysis the article pushes beyond a transitional justice focus on ideology or empirics to make
a novel theoretical analysis of the structural flaws inherent in ICTs as institutions that
inhibit their contribution to societal peace and prosperity.
1. Noncommittal response: “The purpose of the court is to render justice, full stop. . . . Maybe it’s
not even valid to think about reconciliation; the idea of focusing, at the ICTY, on peace and reconcilia-
tion doesn’t make sense at all” (interview, Office of the Prosecutor, The Hague, May 4, 2005; notes on
file with the author). Hostile response: “Where did you hear that, that the ICTY does reconciliation?
Where, on what website? I’d like to see it, we’ll find it right now! There is only one website [that mat-
ters] and there is no mandate for reconciliation. Look in the security council documents, the court doc-
uments, it’s not there. This idea of reconciliation has been projected on to the ICTY by diplomats. But
it’s ridiculous to charge the court with reconciliation. . . . It is true that senior ICTY officials sometimes
mention reconciliation. Goldstone, Cassese, etc. But just because some senior officials say it doesn’t
make it our mandate” (interview, senior ICTY official, The Hague, May 5 2005; notes on file with the
author).

International Criminal Law and Its Paradoxes | 35
I. T H E “ P R O G R E S S ” PA R A D OX O F I N T E R N AT I O N A L C R I M I N A L L A W
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 1964/1986) as a means to ensure against the totalitarian excesses
that led to the war (Primus 1996). 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 vio-
lates key tenets of rule of law systems as well as notions of justice. Second, the crimes com-
mitted by Nazi actors whom the Allies sought to prosecute emerged not from brute law-
lessness 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 1980/2006; Sohn 1982; Donnelly 2003)
to legitimize its practice (Citron 2006). Günther Teubner (2015, 10) calls this “sociolog-
ical 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 ar-
ticulations 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 prac-
tice 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 reconcil-
iation; 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 Kant-
ian 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 ac-
cusing the IMT of applying “victor’s justice” (Finch 1947; Mettraux 2008). 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,”2
where the victorious nations “stayed the hand of vengeance” through the imposition
of the rule of law (Bass 2000). 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 jurisdic-
tional challenges it surmounted, thanks to the precedential, positive law value of the Nu-
remberg tribunal itself. Nonetheless, modern international criminal law institutions con-
tinue 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 in-
terpretive 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 prac-
titioners regarding legal content (Schabas 2011, 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 interpreta-
tions of international law, which is predominantly treaty and customary international law
(Swart 2010). 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 2010).
The “dynamism” that international criminal law has enjoyed as a result of its “open-
ness to judicial activism” (Schabas 2009, 100) meets challenges in the principle of le-
gality, that is, the prohibition on retroactive criminalization (Shahabudden 2004). Legal
dynamism also plays differently across legal cultures, particularly with regard to the legit-
imacy of judge-made law where ICT statutes do not explicitly authorize such practice
(Schabas 2009, 78). Following Montesquieu (1750/1989), 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 1962/1986). Thus ICT
invocation of the amorphous source of customary international law in building legal con-
tent is similar and familiar to the interpretive practice of common law judges (Schabas
2. Opening statement, US Prosecutor Justice Jackson, Nuremberg Trial Proceedings, vol. 3, De-
cember 4, 1945 (http://avalon.law.yale.edu/imt/12-04-45.asp).

2009, 100), where constitutions “pose relatively few substantive (as opposed to proce-
dural) limits on the state’s criminalizing power” (Lacey 2009, 940). A similar observation
is made less flatteringly by Bohlander (2014), 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 con-
cerns, 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 2001, 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 2009).
“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 2012).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. T H E “ J U S T I C E ” PA R A D OX I N I N T E R N AT I O N A L C R I M I N A L L A W
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 1998, 2013). Writ large, the driving impetus of international
criminal law follows a Durkheimian logic (Madsen 2013), wherein the recognition and
punishment of violations of “humanity’s law” perform a social function, in this case creat-
ing a global rights community (Sikkink 2011) and articulating a “global conscience” (Am-
bos 2013). 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 respon-
sibility for violations of international humanitarian law (Roht-Arriaza 1990; Bassouni
2013; Cryer 2014). These are crimes designated as “grave” or “core” and include genocide,
3. For another tone regarding the utopian project of international criminal law, see Dov Jakob’s
April 20, 2016, Spreading the Jam blog post, “Heal the World at the ICC Opening Ceremony . . . no,
they didn’t dare!” (https://dovjacobs.com/).

crimes against humanity, and war crimes.4 International criminal law thus criminalizes vi-
olations of internationally recognized human rights, situating itself between international
law and criminal justice (Fletcher 2012; Cassese 2013). Lacking its own penology, in-
ternational criminal law builds instead on the rationales used for applying criminal sanc-
tions at the domestic level (Bassouni 1993; Cassese 1998, 2013; Damaška 2008; Drumbl
2008), borrowing the retribution, deterrence, and to some degree rehabilitation/restora-
tion rubrics that underwrite criminal law in domestic jurisdictions.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 1919/2013). International criminal law is
distinguished from other practices in international law by its “hard law” provisions, its “in-
stitutional potential to actually exert force on a rogue government, a warlord, or a per-
petrator of crimes against humanity” (Clarke 2009, xii). Where other forms of interna-
tional law are generally “soft law” constructivist practices organized around the consent
of collective organizations, international criminal law assesses criminal liability on individ-
uals. This potential deprivation of liberty is accomplished beyond the boundaries of citi-
zenship, where any person on the planet (provided that jurisdictional obstacles related to
the individual tribunal are overcome) can be liable for conduct seriously breaching inter-
national humanitarian law.
Unlike liberal sovereign states, however, international criminal law accomplishes its as-
sertion 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 (2015) argues that the partner/agent relationship between interna-
4. The central charge at the IMT was “crimes against peace,” i.e., the waging of aggressive war: this
charge has not fared well in the decades following the IMT. Many ad hoc tribunals do not recognize
the charge, and it is only partially reflected in the statutes of the ICC (Clark, Wise, and Podgor 2009).
5. See, e.g., Prosecutor v. Blagoje Simić, Miroslav Tadić and Simo Zarić, Appeals Chamber Judgment,
Case no. IT-95-9 (ICTY, October 17, 2003), para. 1059. “It is universally accepted and reflected in
judgments of [ICTY and ICTR] that deterrence and retribution are general factors to be taken into ac-
count when imposing sentences.” Prosecutor v. Milorad Krnojelac, Trial Chamber Judgment, Case
no. IT-97-25 (ICTY, March 15, 2002), para. 508. Prosecutor v. Anto Furundžija, Trial Chamber Judg-
ment, Case no. IT-95-17/1 (ICTY, December 10, 1998), para. 288. Prosecutor v. Dragoljub Kunarac,
Radomir Kovač, and Zoran Vuković, Case no. IT-96-23 and 23/1 (ICTY, June 12, 2002) (rejecting
alleged trend away from retribution in international law). Prosecutor v. Zejnil Delalić, Hazim Delić,
Zdravko Mucić, Esad Landžo, Case no. IT-96-21 (ICTY, November 16, 1998), para. 1234 (deterrence
“probably is the most important factor in the assessment of appropriate sentences”). Deterrence is usu-
ally characterized as general, not specific, since the tribunal has recognized “the likelihood of persons
convicted here ever again being faced with an opportunity to commit war crimes, crimes against hu-
manity, genocide or grave breaches is so remote as to render its consideration in this way unreasonable
and unfair.” Prosecutor v. Dragoljub Kunarac, Radomir Kovač, and Zoran Vuković, Case no. IT-96-23
and 23/1 (ICTY, February 22, 2001), para. 840. But see Prosecutor v. Mrđa, Sentencing Judgment, Case
no. IT-02-59 (ICTY, March 31, 2004), para. 16 (noting that the main deterrent effect is to turn per-
petrators away from future wrongdoing).

tional 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 par-
ties 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.6
In this regard, ICTs face particular existential pressures that distinguish them from domes-
tic criminal courts, where ICTs must achieve convictions in order to justify the public re-
sources expended on international trials (Brannigan 2011).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 (1979/1991).
International criminal law claims to administer justice, however, and through this claim
it places itself in a liberal, Kantian tradition (Roth 2011). Hart’s classic Punishment and
Responsibility (1968) defined the normative justifications of “morally tolerable” punish-
ment within the confines of the liberal state (Lacey 2009, 948). In the liberal state, con-
structed on a social contract between governing powers and the governed, the central pur-
pose of punishment is to communicate censure to offenders; punishment must recognize
and reaffirm the citizen’s personhood as within the community (Duff 2009, 2013).
We thus see two challenges to ICTs’ “justice” practice. First, there are the account-
ability 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 (2002,
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
2014), further indicates obstacles regarding the formation of such a community.
6. The permanent ICC is in a novel position for ICTs. As a treaty-based instrument, it in principle
answers to its members. A recent kerfuffle regarding Palestine accession, however, draws into focus the
question of the UN’s authority in that court as well. See Canada’s letter contesting the UN secretary
general’s recognition of Palestinian statehood regarding Palestinian accession to the ICC, Canada Com-
munication Reference: C.N.62.2015.TREATIES-XVIII.13 (Depositary Notification) (https://treaties
.un.org/doc/Publication/CN/2015/CN.62.2015-Eng.pdf ).
7. See, e.g., Report of the Secretary-General, The Rule of Law and Transitional Justice in Conflict
and Post-conflict Societies, U.N. Doc. S/2004/616, para. 42 (August 23, 2004): “The two ad hoc tribu-
nals have grown into large institutions, with more than 2,000 posts between them and a combined
annual budget exceeding a quarter of a billion dollars—equivalent to more than 15 per cent of the Or-
ganization’s total regular budget. Although trying complex legal cases of this nature would be expensive
for any legal system and the tribunals’ impact and performance cannot be measured in financial numbers
alone, the stark differential between cost and number of cases processed does raise important questions.”

Second, there is a challenge related to legal content. Part of the “communication” in-
herent 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 2012). 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 1969), and in this way sovereign polities ne-
gotiate internal conflicts of interest (Shapiro 1986; Kymlicka 1989).
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 humanitar-
ian law lies precisely in this nonderogable construction, where the “nonderogable” nature
of the right itself provides the legitimizing animus for the application of international crim-
inal 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 do-
mestic 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 jus-
tice and fairness compromises present at domestic criminal law. The reason is that such
resolution is necessarily political, not doctrinal, and international criminal law rejects po-
litical compromise as a source of legitimacy.
This is the “justice” paradox of international criminal law, and it emerges from conflat-
ing human rights, which “should be read expansively to realize their object and purpose”
(Roth 2010, 286) with law, which gains its legitimating authority through rule of law prac-
tices based on predictability and accountability. Domestic criminal justice processes dem-
onstrate how justice is a process and not a destination (Clarke 2009), 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 hu-
man beings (should) share. This moves away from the dialogue present in the operation-
alization 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 (2010) 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” cat-
egory highlights how justice itself is, at least in practical terms, largely a political formula-
tion; 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 2013, 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.8
A mirror of this conflicted stance is offered by transitional justice practice, which also si-
multaneously reaches to an imagined objective (i.e., universal) justice standard to legiti-
mize 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 out-
come, has thus far neglected to engage in liberalism’s practices. Rather, international crim-
inal legal practice, through the entirety of its existence, has engaged in subjective im-
balances 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 develop-
ment illustrative of both the progress and justice paradoxes present in international crim-
inal law.
III. I N T E R N AT I O N A L C R I M I N A L L A W ’ S PA R A D OX E S I N AC T I O N :
T H E E M E R G E N C E A N D E VO LU T I O N O F T H E I C T Y ’ S J O I N T
CRIMINAL ENTERPRISE DOCTRINE
Joint criminal enterprise (JCE) is a modern, contentious formulation of international
criminal law that has attracted volumes of scholarly attention.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.10 JCE represents the resolution
of a tension between international criminal law’s rejection of and simultaneous require-
ment for some recognition of “guilty associations.” The first attempt to codify guilty as-
sociations 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
8. This principle is given voice at the ICC through art. 17, the complementarity provision, by
which the ICC prosecutes only those crimes that member states cannot or will not prosecute; i.e., the
ICC is a “court of last resort” for violations of international humanitarian law.
9. See, e.g., a special issue of the Journal of International Criminal Law (vol. 5, 2007) devoted to the
topic.
10. Like the US jurisprudence regarding conspiracy, JCE is a way of “doing” crime, because the
ICTY statute specifically precludes “being criminal” vis-à-vis guilt by association or culpability based on
membership in a criminal group; Report of the Secretary General pursuant to para. 2 of Security Coun-
cil Resolution 808 (1993), May 3, 1993 (S/25704), §§ 50, 51. This was reaffirmed in Prosecutor v.
Milomir Stakić, Case no. IT-97-24 (March 22, 2006).

conspiracy or guilt by association. This reflects yet another tension between the two dom-
inant 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 2011).
The articulation of JCE has enabled an extraordinarily broad establishment of culpa-
bility in ICTY practice (Danner and Martinez 2005; Hamdorf 2007; van Sliedregt 2007;
Van der Wilt 2009) and resolved an endemic evidentiary problem plaguing crimes com-
mitted in times of widespread social violence. This bonanza is widely recognized: at the
ICTY, JCE is sometimes privately referred to as “just convict everybody.”11 Other ICTs
have rejected JCE, however,12 and the ICTY’s own jurisprudence in the past 5 years sug-
gests 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. Chal-
lenges to the substance and application of the JCE doctrine illustrate international crim-
inal law’s paradoxes at work.
A. Early JCE: Tadić, Kvočka et al., and the Culpability of Knowledge

Duško Tadić, arrested in Germany in 1994 and extradited to The Hague, was the first
defendant in the dock and a test case for the fledgling ICTY as it attempted to rekindle
the Nuremberg legacy (Alvarez 1998). Tadić was an opportunistic participant in the vio-
lent ethnic cleansing of northwest Bosnia during the spring and summer of 1992, a pri-
vate citizen who took up arms and engaged in violence. In its 1997 opinion, the Tadić
Trial Chamber, while finding Tadić guilty of numerous breaches of international crim-
inal law, acquitted him of a series of murders because it could not demonstrate that Tadić
himself had committed them (Judgment, The Prosecutor v. Duško Tadić, Case no. IT-94-
1-T, Trial Chamber II, May 7, 1997). On July 15, 1999, the Appellate Chamber reversed,
articulating the JCE theory of liability to find Tadić liable for crimes that were foreseeable
from activities in which he was participating and thus finding Tadić culpable for deaths
resulting from his participation in criminal activities (in this case, ethnic cleansing) even
though it could not say with certainty that he personally participated in their commission.
Undoubtedly, the particularly sadistic elements of the Tadić case helped smooth the
way for a doctrinal formulation that connected bad acts to defined violations of interna-
11. Interview, Office of the Prosecutor, The Hague, May 4, 2005; notes on file with author. See
also Badar (2006) and Ohlin (2009).
12. The ICC has formally declined to recognize JCE jurisprudence. It nonetheless has also devel-
oped a theory of liability that makes it possible to capture “participants” removed from immediate vio-
lence (Ohlin 2009).

tional humanitarian law; Tadić was an unsympathetic thug, and justice appeared to vouch
for a doctrine that could ensnare him. Just 2 years after the Tadić appeals judgment, the
ICTY decided Prosecutor vs. Miroslav Kvočka, Mlađo Radić, Zoran Žigić, Dragoljub Prcać,
IT-98-30/1-T (ICTY, November 2, 2001), however, in which the doctrinal gymnastics
necessary to apply JCE are laid bare through the example of a more sympathetic defen-
dant.
The Kvočka et al. case arose from crimes committed in the Omarska prison camp,
which functioned from May to August of 1992. Thousands of Bosnian Muslims and other
“enemies of the state” were held in warehouses on an abandoned mining site, where they
endured physical, mental, and sexual violence, and organized killings were “recreational
and sadistic” (Silber and Little 1997, 251). This violence was perpetrated by both civil-
ian visitors randomly arriving on site (such as Duško Tadić) and guards stationed at the
camp. When it was first publicized in August 1992,13 Omarska brought the war in Bos-
nia into the global spotlight, commencing a wider discussion of what response Western
powers would make to war in Europe. Atrocities committed in Omarska were highlighted
in the 1994 Bassouni Report to the United Nations that informed the first indictments
of the fledgling ICTY.14 In a manner of speaking, Kvočka et al. is a case the ICTY was built
to try.
The named defendant in the case, Miroslav Kvočka, was a Bosnian Serb policeman
assigned to Omarska, and in 2001, the ICTY sentenced him to 7 years in prison for
his role in Omarska’s horrors. In its judgment, the Trial Chamber determined that Kvočka
worked a total of 17 days at the camp; never threatened, harmed, or ordered harm against
any detainee; repeatedly reported violence or evidence of violence to his superiors; person-
ally protected prisoners from violence, including once by putting his body between a
shooting gunman and a group of prisoners; exerted a “restraining influence” because vio-
lence in the camp decreased when he was there; bore no animus toward Bosnian Mus-
lims and was married to one; suffered a nervous breakdown while at the camp and took
1 week’s leave; and was ultimately dismissed from the camp because he was too sympa-
thetic to Muslims. Nevertheless, applying World War II–era jurisprudence regarding lia-
bility for those who assist in criminal systems (paras. 265–306), the Trial Chamber applied
JCE liability to find Kvočka’s awareness of violence in the camp to be legally commensu-
rate with committing this violence himself.
Knowledge as the legal equivalent of intention is not novel at criminal law.15 Doctrinal
contortions arise rather in the question of how to formulate what Kvočka knew. Confirm-
13. Charles T. Powers, “Dirty War of ‘Ethnic Cleansing’: Muslim Slavs Have Been Robbed,
Beaten, Thrown Out of Their Homes and Imprisoned by Serbian Militiamen. Their Accounts Suggest
a Clear Pattern of Persecution,” Los Angeles Times, August 10, 1992.
14. “Final Report of the Commission of Experts Established Pursuant to Security Council Resolu-
tion 780 (1992),” S/1994/674, May 24, 1994.
15. See, e.g., Model Penal Code § 2.02, General Requirements of Culpability (http://academic
.udayton.edu/legaled/crimlaw/02-Elements/04MPC2-02.htm).

ing the Trial Chamber judgments, the Kvočka et al. Appellate Chamber argued that be-
cause Kvočka knew of violence—saw the dead bodies (he wrote reports signaling them
to his supervisors), the random shootings and beatings, and the conditions in which pris-
oners were kept—he therefore knew that the entire enterprise of the Omarska prison camp
was illegitimate and illegal and thereby shared the intent (the JCE standard) to perpetuate
Omarska’s illegalities (February 28, 2005).
Conflating Kvočka’s knowledge of violence in the camp (which is uncontested) with
his knowledge that Omarska itself was a criminal organization is a doctrinal stunt. The
Appeals Chamber accomplished this by finding Kvočka engaged in “criminal participa-
tion,” which, again relying on several WWII-era cases for support, it defined as follows:
“when a detention facility is operated in a manner which makes the discriminatory and
persecutory intent of the operation patently clear, anyone who knowingly participates
in any significant way in the operation of the facility or assists or facilitates its activity, in-
curs individual criminal responsibility for participation” (para. 306).
Through its “discriminatory and persecutory” language, the Appeals Chamber asserted
that the criminal nature of the Omarska enterprise, so clear to it, must have been clear to
the professional policeman Miroslav Kvočka, too. The Kvočka et al. decision demonstrates
a strict liability standard, where to work in the camp is to be guilty of the crimes committed
there; it is guilt by association, where the association is the state, retroactively determined
to be criminal. This participation then signals the intent that is central to JCE liability.
B. Reining in the Paradigm: Gotovina (2012); Perišić (2013); Stanišić and

Simatović (2013, 2015); Šešelj (2016)
Kvočka et al. was decided in the midst of a JCE landslide; for more than a decade, nearly all
convictions before the ICTY relied on JCE. And then, a few years ago, in anticipation of
closure and allegedly under pressure from the ICTY’s leadership,16 ICTY judgments be-
gan “walking back” the sweeping moral insistences of the type evidenced in Kvočka et al.
First, there was the Appeals Chambers’ 2012 reversal of the Trial Chambers’ 27-year sen-
tence against Croatian General Ante Gotovina, acquitting him and his codefendant, Com-
mander of Croatian Special Police Mladen Markač. This was followed by acquittals for
Serbian military and political leaders: Perišić (2013), Stanišić and Simatović (2013; retrial
ordered 2015), and most recently, in March 2016, Šešelj.17
16. In June 2013, an ICTY judge suggested that reversals in JCE jurisprudence may be due to a
concern that, as the ICTY closes down and its judgments pass irreversibly into the ether of customary
international law, ICTY-developed theories of JCE might come to be applied to Western powers. In a
widely circulated e-mail, Judge Harhoff accused ICTY president Theodor Meron of applying “tenacious
pressure” on judges to tighten the standards required to convict military leaders under JCE; this resulted
in his dismissal. See ICTY Judge Ferderik Harhoff’s e-mail to 56 contacts, June 6, 2013 (http://www.bt.dk
/sites/default/files-dk/node-files/511/6/6511917-letter-english.pdf ). See also Marko Milanovic, “Danish
Judge Blasts ICTY President,” EJIL:Talk! (http://www.ejiltalk.org/danish-judge-blasts-icty-president/).
17. The cases discussed in this paragraph are as follows: Prosecutor vs. Ante Gotovina, Ivan Čermak
and Mladen Markač, Case no. IT-06-90-PT (ICTY, November 16, 2012); Prosecutor v. Momčilo Perišić,

In each of these cases, the doctrinal construction at issue was precisely the balance be-
tween the actor and the ruthless state or cause he was serving. Where early JCE cases such
as Tadić and Kvočka et al. ruled against the individual actors, applying a generalized moral
certitude decrying these actors’ participation in organized atrocity regardless of how such
participation arose (i.e., representing “progress” through applied, nonderogable legal doc-
trine), later cases have sought to distinguish individual actors’ actions from the criminal
goals and acts of the states they were serving through the prism of their intent (engaging
in a practice that more closely approximates the work done by domestic criminal justice
systems). In acquitting the Serbian General Perišić of criminal liability for his role at the
top of a military hierarchy that supplied Bosnian Serbs with weaponry and manpower, for
example, the Perišić Appeals Chamber distinguished the Bosnian Serb army from certain
illegitimate elements of its practice. A divided Appeals Chamber found that the prosecu-
tion had not shown that Perišić’s aid had specifically assisted the criminal, illegitimate aims
of the Bosnian Serb army. Likewise, the 2013 acquittal of two senior Serb generals in
Stanišić and Simatović redefined JCE from Kvočka et al.’s sweeping “knowledge as the ju-
dicial equivalent of intent” to a narrower “inference of intent . . . to share common crim-
inal purpose” standard (paras. 2315 et seq.). Although the Trial Chamber found that the
two Serb generals directed, supplied, and organized troops who were active in violence in
Croatia and throughout Bosnia, it held, in a 2–1 decision, the evidence insufficient to sup-
port the mens rea standard it had articulated.
The reader familiar with these cases may protest that each contains important, distin-
guishing contingencies. The Perišić case involves an aiding and abetting charge, not a JCE
charge, and these disparate charges have amassed their own jurisprudence, which con-
founds a straight doctrinal comparison. Moreover, Perišić turned on a novel formulation
of the ICTY’s “aiding and abetting” jurisprudence, which has been roundly criticized
(Aksenova 2015) and has been challenged by subsequent case law;18 history may show
Perišić to be an outlier. The 2013 acquittal by the Trial Chamber, under JCE, of Generals
Stanišić and Simatović was repealed in 2015 by an Appellate Chamber, which ordered a
retrial of the case precisely because of problematic constructions of intent and JCE.19 The
Šešelj judgment, newly minted at the time of writing, has drawn vigorous opprobrium
from many quarters and may not stand: even the Economist, not a natural ally of inter-
Case no. IT-04-81 (ICTY, February 28, 2013); Prosecutor v. Jovica Stanišić & Franko Simatović, Case
no. IT-03-69 (ICTY, May 30, 2013); Prosecutor v. Vojislav Šešelj, Case no. IT-03-67 (ICTY, March
31, 2016).
18. Prosecutor v. Šainović et al., Case no. IT-05-87 (ICTY, January 23, 2014). See also Marko
Milanovic, “ICTY Appeals Chamber Reverses Stanisic and Simatovic Acquittal, Orders Retrial, Kills
Off Specific Direction (Again!)” EJIL Talk!, December 15, 2015 (http://www.ejiltalk.org/icty-appeals
-chamber-reverses-stanisic-and-simatovic-acquittal-orders-retrial-kills-off-specific-direction-again/).
19. With regard to the JCE portion of the 2013 judgment, the Appeals Chamber determined that
“the absence of a thorough analysis and prior findings on the existence and scope of a common criminal

national criminal courts, challenged the ruling as “a victory for advocates of ethnic cleans-
ing” and critiqued the ICTY’s “confusing standards on war crimes and politicians.”20 The
rationale offered by the Šešelj Chamber to acquit the nationalist radical party leader and
paramilitary recruiter—where the Trial Chamber found it “could not rule out” that Še-
šelj’s speeches calling on paramilitaries to “spare no one” were “meant to boost the morale
of the troops of his camp,” and not to be taken literally—is so far from the rationale ex-
plored in Kvočka et al. that it beggars belief. The Office of the Prosecutor is appealing the
judgment.21
That these later cases are doctrinally distinguishable from Tadić and Kvočka et al., or
that they are not final, is insufficient to deny the directional shift they signal. In Kvočka
et al., international criminal law is constructed as strict liability and ensnares a demonstra-
bly well-intentioned policeman caught up in the bitter dissolution of his state. In Perišić
and again in Stanišić and Simatović and Šešelj, rather inexplicably, senior leaders with un-
disputed capacities to design and affect policy are granted a pass. In Perišić, this formula-
tion is designed around the argued potential for the defendant’s action not to have been
criminally intended, even where the facts demonstrate that crimes were committed and tie
the defendants’ actions to those crimes. Similarly, in both the Stanišić and Simatović and
Šešelj cases, the court offers the benefit of the doubt with regard to what the accused “really
meant” (intended) through their actions. Although international criminal law’s theoretical
basis rests on the power of holding individuals culpable for atrocities, the Perišić, Stanišić
and Simatović, and Šešelj Chambers departed from established applications of interna-
tional criminal law to shield senior leaders from culpability.
The question then is: how should we understand this departure from earlier doctrine?
The Tadić and Kvočka et al. cases articulated bold new standards at international criminal
law. If the strict liability JCE imagined seemed to push the boundaries of “justice,” there
was still the possible rejoinder that “progress” always entails challenges to the dominant
paradigm: consider the upheavals occasioned by the Warren Court’s work toward social
justice.
In this vein, the turnaround of the JCE jurisprudence reveals the “progress” paradox in
full. If JCE’s strict liability standard was to be understood as the new look of “progress,”
then the high-ranking leaders that ICTY chambers went on to acquit should have been
equally, if not exceedingly, culpable. In contrast to actors such as Kvočka and other in-
purpose shared by a plurality of persons as well as on Stanišić’s and Simatović’s contribution to it”
meant that “the Trial Chamber could not have properly adjudicated Stanišić’s and Simatović’s mens rea.”
20. The Economist, “Vojislav Seselj’s Acquittal Is a Victory for Advocates of Ethnic Cleansing: An
International Tribunal Is Creating Confusing Standards on War Crimes and Politicians,” March 31, 2016.
21. See the judgment summary at http://www.icty.org/x/cases/seselj/tjug/en/160331_judgement
_summary.pdf. For the appeal, see “Statement by MICT Prosecutor Serge Brammertz Regarding Ap-
peal of the Vojislav Šešelj Trial Judgement,” April 6, 2016 (http://www.unmict.org/en/news/statement
-mict-prosecutor-serge-brammertz-regarding-appeal-vojislav-seselj-trial-judgement).

termediaries on whom international criminal legal jurisprudence is built,22 these high-

ranking leaders had the status and opportunity to affect the character of Yugoslavia’s dis-
solution. Perišić’s provisions supported the 3-year siege of Sarajevo, where Bosnian Serb
snipers targeted civilians to increase terror and demoralize residents; paramilitaries re-
cruited and encouraged by Šešelj executed, among others, 200 patients in a hospital in
Vukovar, Croatia. Yet instead, the JCE jurisprudential legacy leaves us with an unwilling
prison guard (Kvočka) found to share full culpability for the violence his peers committed
under a broad “knowledge is participation standard,” but decision-making generals and
politicians (Gotovina, Perišić, Stanišić, Simatović, and Šešelj) as not culpable for the vio-
lence they proselytized, envisioned, or enabled, because the participation standard narrows
to “demonstrably evil intent,” where reasonable doubt is applied to the construction of
intent.
The evolution of the ICTY’s JCE jurisprudence offers a window into the structural
obstacles impeding international criminal law’s justice and progress mandates. As the JCE
case law shows, founding institutional legitimacy in “progress” does not counsel where the
boundaries of legality ought to be drawn. The structures of ICTs contain no means to
address the question of content, that is, no discursive facilities to engage the question
of how criminalization should be determined. Consider the Perišić appeals judgment:
five seasoned international judges, drawing on two decades of jurisprudence, reached three
different determinations regarding how knowledge/awareness of crime should be crim-
inally categorized. Discord at such a basic doctrinal level regarding the elements of in-
ternational crimes cannot be read, after 20 years of practice, as the growing pains of an
emerging institution or jurisprudence, but rather must be understood as demonstrative
of structural fault lines in the construction of ICTs. Where justice is necessarily devel-
oped “in the eye of the beholder” and when such beholder has, in the name of progress,
free rein to determine what that justice looks like, we are closer to Robespierre’s Terror
than to the Warren Court.
The stated rationale for prosecuting lower-level perpetrators (such as common thug
Tadić and the unfortunate Kvočka) was to build an evidentiary pyramid capable of cap-
turing the senior leadership who bore the greatest responsibility (both morally and in prac-
tice) for atrocities committed on the ground. Yet international criminal law has thus far
been unable or unwilling to assess culpability to these leaders: the Gotovina, Perišić, and
22. See, e.g., WWII-era case law such as the case of Velpke Children’s Home, where a local doctor
was condemned for volunteering his medical services to what amounted to a death camp for babies
of enforced laborers. Velpke, which is cited in Kvočka et al., is similar to that case, and distinguished
from Tadić, in that neither the doctor in Velpke nor Kvočka was accused of committing or intending vi-
olence. The example of Tadić demonstrates what Nollkaemper (2009, 16) calls “system criminality,”
which he defines as “a situation where collective entities order or encourage international crimes to be
committed, or permit or tolerate the committing of international crimes.” The doctor in Velpke and
policeman Miroslav Kvočka are distinguishable from Tadić because they are examples of individuals
whose criminal guilt follows not from their particular actions (treating babies; serving as a policeman)
but rather from the circumstances in which these actions were performed.

Stanišić and Simatović and Šešelj decisions join earlier acquittals of Croatian Assistant Min-
ister of Defense Ivan Čermak, Commander of Kosovo Liberation Army Ramush Hara-
dinaj, and the senior commander of Bosnian Muslim forces in municipalities in eastern
Bosnia, Naser Orić.23 Thus the Gotovina, Perišić, and Stanišić and Simatović and Šešelj de-
cisions stand as the latest examples of a prevalent trend at the ICTY of convicting the pow-
erless and acquitting the powerful. Of course, no legal system functions perfectly, and a
critique of international criminal law as imperfect in this sense would be meaningless.
Rather, this directional shift in the JCE jurisprudence demonstrates the paradoxical rela-
tionships ICTs enjoy with “progress” and “justice” where, as currently practiced, interna-
tional criminal law’s foundational “progress” narrative both invites and requires an indi-
vidualized application of legality that is in the eye of the beholder. The JCE jurisprudence
thus suggests that the “eye of the beholder” (in this case, the international judiciary) would
appear to grow more amenable to dissonance as it moves up the ranks of power.24 This
double standard, of course, violates the very fundament of the rule of law, where rules
are legal and moral only when, and precisely because, they apply equally to all.
IV. C O N C LU S I O N S : B U I L D I N G T H E N E X T G E N E R AT I O N
O F I N T E R N AT I O N A L C R I M I N A L L A W
International criminal law begins with one deceptively simple principle: punish the guilty
who might otherwise, because of circumstances partly connected to their own violence
and criminality, go free. The moral and political power of this principle—to expand the
reach of justice and to combat impunity—has propelled several ad hoc ICTs in the
20th century and culminated in the foundation of the permanent ICC. This famed “jus-
tice cascade” (Sikkink 2011) has played a central role in the positioning of human rights
as an ideology of global governance (Mazower 2012).
The article’s discussion of the “progress” and “justice” paradoxes is designed to stim-
ulate discussion of how international criminal law might better address the challenges it
faces regarding bright-line rules of criminality. The ICTY’s JCE jurisprudence illuminates
a contemporary moral quandary: how should international criminal law determine liabil-
ity for individuals acting in service to illegitimate state ends? This query in turn encom-
passes the infinitely more problematic question of what standard might be articulated
to determine when state ends, which are frequently persecutory, cross the Rubicon to “il-
legitimate.” Hart (1958, 619–20) famously instructed that “the thing to do with a moral
quandary is not to hide it. Like nettles, the occasions when life forces us to choose between
23. The cases discussed in this paragraph are the following: Prosecutor vs. Ante Gotovina, Ivan Čermak
and Mladen Markač, Case no. IT-06-90-PT (ICTY, April 15, 2011); Prosecutor vs. Haradinaj et al.,
Case no. IT-04-84 (ICTY, November 29, 2012); and Prosecutor vs. Naser Orić, Case no. IT-03-68
(ICTY, July 3, 2008).
24. There have also been suggestions that the inconsistencies of the ICTY’s JCE jurisprudence
should be understood as self-interested; that as JCE nears echelons shared by the international judiciary
(and its backers) itself, the standards have been toughened. See n. 16 re Harhoff affair.

the lesser of two evils must be grasped with the consciousness that they are what they
are.” Instead of grasping the difficult and contentious subject of illegitimacy of state inter-
est, however, international criminal law thus far has taken the shortcut of prosecuting in-
dividuals.
If modern international criminal law would adjudicate individual culpability for state
crimes and have such punishment work as justice, such adjudication must be preceded by
a rigorous, categorical consideration of illegitimacy in state practice. Before we can decide
what Šešelj’s or Gotovina’s culpability for mass population transfers is (the “ethnic cleans-
ing” charges ultimately rejected by the ICTY in both judgments), we must determine the
circumstantial legality of population transfers in war; we must do the hard, nettle-grasping
work of deciding where legitimate (even when persecutory) state interest gives way to
criminal state aggression.
The Rubicon-drawing work of defining state criminality (i.e., legitimate vs. illegitimate
state interest) will always, necessarily, be a work in progress. This article has argued that
such work can best be accomplished by leaning on liberalism’s processes instead of trying
to shortcut to an imagined version of liberal outcomes. Presently, ICTs operate under the
claims of a universalized moral theory, taking “humanity” as a banner and institutional-
izing themselves by decontextualizing and individualizing state violence. This results in
imbalanced individual determinations of culpability that are rendered less socially consti-
tutive only by being unpredictable, illegible, and/or unfair, thereby undermining the very
elements of liberalism (the “progress” and “justice” narratives) that do the heavy lifting in
the foundational animation and legitimization of these institutions. As proponents of in-
stitutionalized human rights dream of ushering in a more peaceful epoch of human his-
tory, they must begin this work by applying liberalism’s lessons to the international judi-
cial institutions that would claim to model liberal practice.
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International Criminal Law and Its Paradoxes: Kerstinbreecarlson

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International Criminal Law

and Its Paradoxes

KERSTIN BREE CARLSON, iCourts, University of Copenhagen,

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tional organizations and their funder/directors locks international organizations in

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2006). As discussed above, international criminal law’s foundational impetus necessarily

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A. Early JCE: Tadić, Kvočka et al., and the Culpability of Knowledge

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B. Reining in the Paradigm: Gotovina (2012); Perišić (2013); Stanišić and

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termediaries on whom international criminal legal jurisprudence is built,22 these high-

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