Historical Base and Legal Superstructure

As international criminal law lives through an endless crisis, some commentators cast doubt on its suitability to confront episodes of mass atrocity. This chapter addresses the question of international criminal law’s necessity from a historical perspective, revisiting a moment in which the whole enterprise seemed on the verge of collapsing: Duško Tadić’s 1995 challenge to the jurisdiction of the International Criminal Tribunal for the former Yugoslavia (ICTY). Following out Susan Marks’s famous appeal, the analysis attempts to read both contingency and necessity into the reasoning which led the ICTY Trial and Appeals chambers to dismiss said challenge. It then claims that the judges’ approach can be interpreted through the lens of Pierre Bourdieu’s notion of habitus, internalised history orienting individuals towards certain choices and away from others. But even when the behaviour of specific agents is at stake, using the habitus as an explanatory tool keeps redirecting towards questions of structure. Accordingly, it appears that in instances of groundless adjudication like the Tadić challenge, where international law is called to pronounce on the foundations of the very practices it supports, structure determines outcomes much more than human agency does. Yet, noting that any analytical concept is an authorial construct—including contingency and necessity, agency and structure—the chapter concludes by problematising its own findings, and by reminding scholars of the political responsibility intrinsic to historical inquiry.