Creating Ontological Outlaws: International Criminal Law and the Contamination of Liberal Legal Systems

Modern criminal law theorists highlight the communicative purpose of criminal law as key to its legitimation. These precepts form the foundations of ‘liberal’ criminal law, are protected through rule of law principles and constructs, and form the ideological basis for the field of international criminal law (ICL). ICL’s origin in natural law justifications obscures the political contestation that is necessary for criminal law to demonstrate flexibility in different contexts, i.e. its rationality and communicative functions, however. ICL’s natural law foundations thus impose a non-derogable standard that often captures defendants ‘adjacent to’ international criminal acts, and classifies that proximity as responsibility. My previous work has shown how ICL jurisprudence constructs bad actors that incur criminal liability based more on where they happened to be, rather than what they do. The present article reviews previous arguments regarding the nature and structure of ICL, applies them to recent ICL jurisprudence, and builds
on them to show how domestic criminal prosecutions for terror (‘terror law’) can be subjected to the same critique. The article argues that there is a parallel between the illiberal structures that define and challenge ICL and illiberal developments in domestic terror law. This adds a new line of critique to challenges that are levied against terror law.