Punishment, Legality, and Other Challenges of International Criminal Law

Although international criminal law has developed significantly in the 75 years following the Nuremberg Tribunals, the challenge to the legality principle at the heart of its practice remains unaddressed. This article discusses the structural challenges to international criminal law’s legitimacy, beginning by deconstructing the progress paradox that simultaneously legitimizes and undermines international criminal law. Because these challenges are situated in questions of how actions are legally characterized at international criminal law, the article moves on to consider two recent icc cases that demonstrate two aspects of this fundamental challenge to international criminal law practice at work. These cases, the article argues, demonstrate the doctrinal problems that arise from a legal form that bases its legitimacy on its promise of progress.