International Criminal Law and Its Alternatives: Truth, Justice, Reconciliation, and Memory

• Pages: 325-352
• Author: Beth Van Schaack,Ronald C. Slye

325

Chapter 12

INTERNATIONAL CRIMINAL LAW

AND ITS ALTERNATIVES: TRUTH,

JUSTICE, RECONCILIATION,

AND MEMORY

The fundamental purpose of any system of law is to further

desirable social policy outcomes. Most texts in the field of

international criminal law (ICL) assume the worthiness of the project

to expand individual criminal responsibility for acts that violate

international law, regardless of whether the offenders are state

agents or private actors. That said, it is worth reflecting for a moment

on the articulated justifications for a regime of ICL.

1

The goals of

ICL—as advanced over time by its practitioners and supporters—are

as varied as they are ambitious: to deter future offenses, mete out

just punishment, promote accountability, incapacitate offenders,

rehabilitate victims and perpetrators, provide a substitute for

vigilante justice, reconcile embattled communities, individualize

guilt to avoid collective recriminations, reinforce the rule of law, and

heal shattered societies. In this way, ICL embodies some of the goals

traditionally associated with domestic criminal law (retribution,

deterrence, and rehabilitation).

2

At the same time, it embraces others

that transcend those more localized concerns and reflect the

expanded interests of the international community in promoting

peace and stability. The system of ICL thus aspires to be more than

just the extension of the domestic criminal law model onto the

international plane.

This chapter reviews some of the articulated purposes of ICL

and weighs them against critiques of the field and alternative models

of justice and accountability, both legal and non-legal. The goal is to

better contextualize ICL vis-à-vis these alternative responses to

armed conflict, mass violence, and repression. As you study the

various situations in which states and other members of the

international community, acting individually or collectively, have

1

Good discussions of this topic may be found here: Immi Tallgren, The

Sensibility and Sense of International Criminal Law, 13 EUROP. J. INT’L L. 561 (2002);

Robert D. Sloane, The Expressive Capacity of International Punishment: The Limits of

the National Law Analogy and the Potential of International Criminal Law, 43

STANFORD J. INT’L L. 39 (2007); and MARK A. DRUMBL, ATROCITY, PUNISHMENT, AND

INTERNATIONAL LAW (2007).

2

For a discussion of the traditional justifications of the criminal law, see

Miriam J. Aukerman, Extraordinary Evil, Ordinary Crime: A Framework for

Understanding Transitional Justice, 15 HARV. HUM. RTS. J. 39 (2002).

326

INTERSECTIONS

Pt. II

resorted to international criminal justice, consider to what extent the

criminal justice model employed in response to “ordinary” crimes on

the domestic level is effective on the international level in response

to the “extraordinary” crimes of genocide, war crimes, crimes against

humanity, and state aggression. In addition, reflect upon what other

policy options were available to these actors and whether these other

responses might have achieved more desirable outcomes. Finally,

contemplate these issues from the perspective of victims and the local

affected communities: Which responses do you think best reflect their

interests and priorities? To what extent should the international

community seek to incorporate victims’ rights and perspectives into

the design and implementation of transitional justice mechanisms?

What is the best way to accomplish this?

A. The Objectives of International Criminal Law

Although more ambitious motivations have been associated with

the project of international criminal justice, the three main

justifications for ICL, as articulated by its adherents in the

international community today, are retribution, deterrence, and

expressivism. Rehabilitation (of both perpetrators and victims)

remains a goal of international human rights law and many domestic

systems; however, it is less salient in ICL, at least at the moment.

The original ad hoc tribunals also envisioned that they would

contribute to the reconciliation of warring communities and the

establishment of the rule of law. Over time, the tribunals’ ability to

accomplish these outcomes was questioned in light of modern

research and their articulated objectives became more modest.

1. Retribution

Theories of retribution are premised on the idea that individuals

who disturb the public order must be punished for their actions. This,

it is surmised, helps to return society to a prior state of equilibrium.

For retributivists, a regime of international criminal justice is

justified by the need to avenge acts that disturb international public

order. Punishment also serves the purposes of conveying the global

society’s condemnation of the disruptive conduct. As an alternative

to summary execution or exile, criminal justice creates heightened

stigma by ensuring that responsible individuals are publicly

condemned as war criminals and génocidaires. Indeed, the

imperatives of accountability and anti-impunity are frequent

refrains of proponents of international criminal justice.

Punishment can also provide a sense of satisfaction to victims

when they see their tormentor reprimanded. A formal system of

criminal justice is often justified as a way to avoid cycles of

recrimination and other forms of vigilante self-help that may occur