Leiden Journal of International Law

HAGUE INTERNATIONAL TRIBUNALS: International Criminal Tribunals

The Identity Crisis of International Criminal Law



The general narrative of international criminal law (ICL) declares that the system adheres in an exemplary manner to the fundamental principles of a liberal criminal justice system. Recent scholarship has increasingly questioned the adherence of various ICL doctrines to such principles. This article scrutinizes the discourse of ICL – the assumptions and forms of argumentation that are regarded as sound reasoning with appropriate liberal aims. This article argues that ICL, in drawing on national criminal law and international human rights law, absorbed contradictory assumptions and methods of reasoning. The article explores three modes by which the assumptions of human rights liberalism subtly undermine the criminal law liberalism to which the system aspires. These modes include interpretive approaches, substantive and structural conflation, and ideological assumptions. The identity crisis theory helps to explain how a system that strives to serve as a model for liberal criminal justice systems has come to embrace illiberal doctrines that contradict the system's fundamental principles.

Key words

  • command responsibility;
  • human rights;
  • humanitarian law;
  • international criminal law;
  • interpretation;
  • joint criminal enterprise;
  • legal reasoning;
  • legality;
  • strict construction


* Assistant Professor, Faculty of Law, Queen's University. This article was written during a fellowship at the University of Toronto Faculty of Law. The author is immensely grateful to all who provided comments on this paper. Robert Cryer, Mark Drumbl, and Karen Knop provided feedback in early discussions about the ideas presented herein. William Burke-White, Larry May, Michael Newton, Mary Ellen O'Connell, Valerie Oosterveld, Brad Roth, Leila Sadat, Andrew Strauss, Stephen Thaman, and Jenia Iontcheva Turner provided thoughtful comments at a January 2008 workshop at Washington University in St. Louis. Ben Alarie, Nehal Bhuta, Jutta Brunnée, Randal Graham, Ed Morgan, Kent Roach, and Simon Stern provided valuable thoughts on earlier versions of the paper, which also benefited from discussions in a presentation at Queen's University in December 2007 and a faculty workshop at the University of Toronto in March 2008. I wish to thank Andrea Ewing and Anatoly Vlasov for excellent research assistance.