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Intro -- Acknowledgements -- Contents -- Abbreviations -- 1 Introduction -- 1.1 Introduction -- 1.2 Expanding on the Elements -- 1.2.1 CAH: Not for the ICC Alone -- 1.2.2 The Broader Questions: Rethinking Retroactive Criminal Law and the Role of Courts -- 1.3 Looking Ahead: The Structure of My Argument -- 1.4 Conclusion -- References -- 2 Theoretical Underpinnings: Understanding the Prohibition on Retroactive Criminal Law -- 2.1 Introduction and Overview -- 2.2 Preliminary Matters -- 2.2.1 Fuller: A Theory for All Systems -- 2.2.2 Legitimacy and Legality -- 2.3 Fuller's Account: The Process of Law and the Legitimacy of the Law -- 2.3.1 Legitimate Law-Making is Reciprocal -- 2.3.2 Legal Subject as Law-Making Agent -- 2.3.3 A Duty to Obey Arises from Reciprocity -- 2.3.4 Reciprocity and Legitimacy -- Focus on Process, Not Results -- 2.3.5 The Elements that Reciprocity Demands -- 2.3.6 When Process Fails -- 2.3.7 Implications: A Closer Look at the Details of Law-Making -- 2.3.8 The Place of Retroactive Laws in a Legitimate Legal System -- 2.3.9 Clarifying Fuller's Theory: Retroactive Criminal Laws May Be Permissible -- 2.3.10 What Remains? -- 2.4 Summary -- 2.5 Implications for the Process of Law-Making -- 2.6 Application to International Criminal Law -- References -- 3 The Prohibition on Retroactive Criminal Law in International Criminal Law -- 3.1 Introduction -- 3.2 Preliminary Matters -- 3.2.1 My Sources Explained -- 3.2.2 The Prohibition on Retroactive Criminal Law: A Variable Concept -- 3.3 Prologue: The Principle Prior to Nuremberg -- 3.3.1 Overview -- 3.3.2 The Prohibition Was Not a Treaty Norm -- 3.3.3 The Prohibition Was Not a Norm of Customary International Law -- 3.3.4 The Prohibition Was Not a General Principle of Law -- 3.3.5 A Brief Overview of Divergent Conceptions and Practice -- 3.3.6 Summary.

We are delighted to participate in this symposium on the legacy of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda (Tribunals; respectively, ICTY and ICTR). We have been asked to offer reflections on the Tribunals' impact on substantive international criminal law (ICL)—in particular, the definitions of crimes and the modes of liability. Given the enormity of the topic, we can offer only a cursory and impressionist sketch of the terrain, and draw attention to a few intriguing features along the way. We will not attempt to survey the Tribunals' jurisprudence or the related academic literature. Instead, our aim is simply to highlight three themes underlying the Tribunals' elaboration of substantive legal standards. For the nonspecialist, this sketch may provide a helpful overview of the evolution of ICL. For the specialist, this sketch may bring into slightly sharper relief some underlying patterns in the Tribunals' work. We will also offer some broader thoughts about the Tribunals in the overall arc of ICL, and how their structure and priorities have left a lasting, distinctive imprimatur on ICL.