The Limits of Judicial Idealism: Should the International Criminal Court Engage with Consequentialist Aspirations?

Abstract

Idealism about what international criminal justice mechanisms can achieve has lead to ideologically driven judicial decision-making in international criminal law (ICL). ICL idealism manifests itself in the belief that international criminal prosecutions can achieve an awesome array of goals. These include retribution, deterrence, reconciliation, rehabilitation, restoration, building a historical record, preventing revisionism, expressive and didactic functions, crystallizing international norms, general affirmative prevention, establishing peace, preventing war, vindicating international law prohibitions, setting standards for fair trials, combating impunity, and more. Ironically, this idealism, although usually well intended, has actually contributed to the politicization of the international judicial process.The perverse consequences of this politicization frequently surface in the sentencing jurisprudence and punishment of perpetrators of atrocity crimes. The shortcomings of the sentencing practice of ICTR and ICTY provide ammunition for today’s ICC skeptics. In a trial process that frequently appears opaque to outsiders because of complex facts, extraordinary crimes, and unfamiliar procedural rules, the sentence is one feature that is readily accessible to the victimized communities and the rest of the watchful world. Unfortunately, as illustrated by local reactions and criticized by observers, sentencing appears erratic, unprincipled, and politically motivated.This article argues that international idealism has distorted the expression of condemnation and the just distribution of punishment among perpetrators of atrocity crimes. I establish this thesis by examining the application of reconciliation and deterrence in sentencing practice of international criminal courts. My tentative conclusion is that both reconciliation and deterrence ideologies have perversely impacted international sentencing such that the punishment imposed does not reflect the culpability of the individual. This is a troubling setback for any institution that holds itself out to be a criminal justice mechanism, and could challenge the supremacy of this type of mechanism as the primary response to atrocity crimes. Moreover, it is important to respect the limits of legalism as an agent of social engineering in post-conflict and transitional justice initiatives. Thus, this article’s findings also illuminate assumptions underlying the on-going debate concerning the efficacy of international criminal tribunals.