The principle of proportionality is one of the core principles of international humanitarian law. The principle is not easy to apply on the battlefield, but is even harder to apply retrospectively, in the courtroom. This article discusses the challenges in applying the principle during international criminal trials. It discusses the principle itself, followed by an explanation of the general challenges of dealing with violations of international humanitarian law, and more specifically the rules related to the conduct of hostilities, during war crime trials. The way in which the principle has been used before the International Criminal Tribunal for the former Yugoslavia is examined, including an in-depth discussion of the recent Gotovina case. The second part consists of an evaluation of Article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court, and discusses the difficulties the International Criminal Court would face in cases dealing with violations of the principle of proportionality.

International criminal tribunals try defendants for horrific acts: genocide, war crimes, and crimes against humanity. At sentencing, however, evidence often arises of what I will call defendants’ ‘good deeds’ – humanitarian behaviour by the defendants towards those on the other side of the conflict that is conscientious relative to the culture in which the defendants are operating. This article examines the treatment of good deeds in the sentencing practices of the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda. I show that the tribunals’ approaches are both undertheorized and internally inconsistent. I argue that the tribunals should draw upon the goals that underlie international criminal law in developing a coherent approach to considering good deeds for sentencing purposes.

The recent jurisprudence of the ICTY concerning the proper interpretation of the doctrine of superior responsibility under Article 7(3) of the ICTY Statute has been stifled by division and uncertainty. In particular, the question of the responsibility of successor superiors for crimes committed by their subordinates prior to taking command has led to a number of 3–2 majority decisions. This paper seeks to reconcile the divergent judicial opinions by moving away from a narrow analysis of successor superior responsibility, instead focusing on the determination of the underlying nature of the doctrine of superior responsibility. While a polarity of opinions also exists in relation to the nature of the doctrine of superior responsibility, this paper argues that the opinions can be reconciled by adopting a more principled approach to customary international law, an approach justified by the international criminal law context. Such an approach involves two elements: first, ensuring that a clear distinction is drawn between international humanitarian and international criminal legal concepts; and, second, the invocation of the principle of individual culpability as a standard against which the weight to be attributed to authorities evidencing custom ought to be assessed. A principled approach would enable the identification of the nature of the doctrine of superior responsibility while ensuring that the doctrine reinforces international criminal law principles rather than acts as an exception to them; in addition, by determining the nature of the doctrine of superior responsibility, the principled approach would unravel the confusion concerning successor superior responsibility in the ICTY jurisprudence.