The pertinent point in relation to this is of some magnitude. They force us to re-examine questions which relate to the penality RIGHT WORD? of international trial process. What are the parameters the retribution and vengeance? Should those consist of a retributive sanction, as any other form of revenge or an exemplary penalty with a strong pedagogical impact? Should we force a criminal to pay for his guilt, and favour his redemption or rather match the convict’s social dangerousness? Consideration of the construction of criminality and the impact of globalised systems of punishment on regional and domestic criminal justice process and policy are expected both to reflect and influence the transformation or fragmentation of internationalised trial process. While clearly defining the quality of punishment is imperative in determining the purport and purposes of a criminal court.
One professor of International law suggests it is the infallibility of punishment – PUNISHMENT CAN’T BE INFALLIBLE – ONLY A PERSON OR MACHINE COULD POSSESS SUCH QUALITIES -, rather than the severity of the sanction, which is the tool for retribution, stigmatisation, and deterrence. Because penalties are made more onerous by the international structure, moral authority and impact upon world public opinion, this punitive effect must be borne in mind when assessing the suitable length of sentence. A former judge of the ICTY, points out that as the Statute of the International Criminal Court was negotiated for years and eventually adopted as a treaty where many compromises were made to render the Statute acceptable to the largest possible number of states. In particular, the powers of judges were strongly curtailed to assuage the fears of a number of states that the Court could infringe upon their sovereignty. The results will invariably preclude the necessary judicial development of the law and restrict the judges substantially to a mechanical function. These limitations appear to demonstrate certain mistrust by various States in the independence of international criminal courts, and they also raise a number of questions concerning the ability of the International Criminal Court to function efficiently as a court of law and the ability of its judges to fulfil their mandate.
A notion put forward by a distinguished International Law professor – GIVE HIS NAME - highlights an additional difficulty the ICC faces, stating that “crimes against humanity, war crimes, and genocide, are highly context-specific.” They are acts committed either during war (between or within nations) or by repressive regimes that when these crimes are finally addressed, it is usually during enormous social and political upheaval: the negotiation of a peace treaty, restoration of legitimate political rule, or some similar milestone. In such circumstances, there are typically other priorities to be considered than just punishing those who committed crimes during the preceding turbulence. An argument furthered by the concept that International criminal justice does not seem to perform that function of 'transitional justice' for which it has been formally established. This function lies in contributing to settle serious social conflicts through judicial measures. So if this function were to be taken seriously, then clearly the conception of punishment and of the means for its execution that have so far characterised the action of the ad hoc international Tribunals should be deeply re-thought and revised to account for modern punitive theory.
A further aspect of the ICC merits attention. Dr van Sliedregt highlights a precept of superior responsibility which the ICC inherited. It is a concept uniform in its underlying principles and broad in its application whilst retaining its specific characteristics. The jurisprudence of the ad hoc Tribunals delivered the tools for variance WHAT DOES THIS MEAN? with the introduction of the concept of 'effective control'. It further respected boundaries set by criminal law by requiring knowledge of the underlying crimes. Unfortunately, the ICC concept is framed in two distinct standards, for military and non-military superiors. This is an unnecessary differentiation of the concept and denies its uniform nature, which is based in customary international law. On that point, the ICC concept of superior responsibility must be regarded as flawed and a step back.
Arguably the punitive justice of ad hoc international Tribunals-as witnessed in Yugoslavia and Rwanda- may even have contrary effects to those hoped for. This kind of punishment can symbolically reinforce feelings of hostility, and fuel the wish for revenge and exclusion rather than eradicating crime. Indeed, it does not encourage rival parties to agree upon or achieve forms of settlement and mediation aimed at rebuilding the social texture and civil solidarity. This is not to say that international Tribunals, even ad hoc, are never appropriate, provided of course that they operate with an acceptable degree of autonomy and political impartiality.
In conclusion, as Zolo suggests, the developments of the last decade seem to imply that any mediating intervention in a situation of post-war transition should be “multi-dimensioned and very articulated, having the 'requisite variety' to meet the complexity of historical and social dynamics.” Both domestic criminal courts and international courts (endowed with complementary jurisdiction) and the rituals of non-judicial or quasi-judicial pacification, rooted in native traditions, should contribute to the process of peace making.
He argues and I agree that the very agencies of international criminal justice should achieve the highest possible degree of contextualisation. They should endeavour to become part and parcel, at the cultural and legal levels, of the transition process. This they should do, instead of passing judgement from high above, from the heights of a superior instance of morality and legality-inevitably located in Northern Europe or North America-and issuing their indisputable verdicts upon ordinary mortals from there.
Clearly International justice and the role of the Tribunals, is not about unfair retribution; if that were the case, humanity should forget about reconciliation and its off-shoot, peace. It is not about vengeance, using the pen as the firearm, much as the victims' plight has been acknowledged; that would be erroneous, such a practice would amount to accepting the erroneous view that you can conquer hatred with hatred. However after considering alternatives to prosecution it is difficult to express a preference among them, other than the vague notion that "perhaps the challenge is to meet a basic need for balance and wholeness." Neither the "one size fits all" prosecutorial strategy, nor a uniform preference for amnesty or some non-juridical alternative in every case, would be justifiable. Circumstances differ, and circumstances matter. Atrocities, whether committed abroad or at home, are almost by definition highly unusual. For precisely that reason, their resolutions should be too.
Ironically, perhaps, a court that is very similar to these from a legal point of view is likely to soon be established in Iraq.
You make some good and thought-provoking points, but your language is not always as clear as it might be. Clarity is of supreme importance in law!
Istvan