Trying Terrorism: Joint Criminal Enterprise, Material Support, and the Paradox of International Criminal Law

This Note will examine theoretical problems in ICL and public international law by evaluating the practical implications of applying ICL sources to find criminal liability outside the narrow confines of the international tribunals. It will examine the problems posed by the conflicting standards of the Rome Statute and ICTY jurisprudence as a matter of customary international law, the failure of U.S. courts to effectively confront the contextual and doctrinal analysis necessary to determine the limitations of these sources, and the proper application of these sources to the issues raised in Hamdan II and Al Bahlul. Viewing ICL through the lens of public international law’s doctrine of sources highlights the challenges inherent to such an analysis and underscores the tangible consequences of leaving these challenges unaddressed in the cases of Hamdan and Al Bahlul. Although this Note is driven principally from a review of (and concern with) U.S. courts’ treatment of ICL, the very problems identified in domestic attempts at interpretation implicate broader issues regarding the evolution of ICL within the confines of public international law’s archaic, formal system. These issues are exemplified by the way the CMCR has imported and applied JCE-a controversial, nascent theory of liability-while severing it from its factual and policy origins. The CMCR’s analysis of ICL is troubling not only for its serious inconsistencies with the jurisprudence of the ad hoc tribunals but also for the concerns it raises for the international community more broadly about the repercussions of adopting ICL judicial precedents uncritically. This Note examines three issues in the wake of Hamdan II and Al Bahlul: (1) whether material support is properly analogous to JCE; (2) whether, as a matter of formal public international law, U.S. courts have properly interpreted the authority of the ICTY’s jurisprudence vis-A-vis the Rome Statute in defining and identifying customary international law norms; and (3) whether the importation of these ICL sources for the purposes of the military commission is proper given the unique context of the tribunals and what, if any, restraints should be placed on the use of their doctrinal developments.