Exploring justice in extreme cases: Criminal law theory and international criminal law

This thesis is about the criminal law theory of international criminal law (ICL). More specifically, the thesis focuses on one area of inquiry within criminal law theory: the fundamental moral constraining principles of criminal law (such as the culpability or legality principles).The main contribution of this thesis is to advance a method for identifying and clarifying the fundamental principles appropriate for ICL. I show that the most familiar sources of guidance are unreliable, and that efforts to find solid grounding are untenable. I propose a ‘coherentist’ method, which stipulates that we do not necessarily need a foundational ethical theory, or bedrock for beliefs. Instead, we can work productively at a middle level, using all of the available clues – including patterns of practice, normative arguments, and considered judgments. Currently prevailing understandings of the principles are contingent human constructs, but nonetheless we can make fruitful progress in applying and refining the best available constructs.The method is illustrated through an examination of command responsibility, an important but hotly contested doctrine. The inquiry shows problems in ICL jurisprudence and generates prescriptions for a law that responds fairly and effectively to a particular danger of human organization.