The Problem of Purpose in International Criminal Law

Abstract

International criminal tribunals have become an important part of the landscape of post-conflict reconstruction. Despite their widespread acceptance, scholars and advocates have struggled to articulate a clear purpose for international criminal law. What good is international criminal law? What can it accomplish? What is its purpose? There exists no consensus among scholars and advocates about the purposes of international criminal law, and this lack of clarity affects how the tribunals operate and can undermine their effectiveness. This article fills that gap by first sorting through the competing theories about what the purposes of international criminal law might be. The article then identifies three objectives that are consistent with the institutional capacity of international criminal tribunals and consistent with the history and doctrine of international criminal law, and shows how these purposes can be implemented in practice. I argue that there are three policy objectives that international criminal tribunals should attempt to achieve, and I show how these objectives are or can be achieved in practice. First, international criminal tribunals should target those widespread harms that affect many individuals as a way to ensure a full accounting of the atrocities. In practical terms, this means that prosecutors would focus on systematic crimes — those with many perpetrators and victims — rather than building cases against a very small number of politically-powerful individuals. Second, international criminal tribunals should target those crimes that caused the greatest stigma to victims as a way to use the authority of the tribunal to condemn as wrongful conduct that occurred during the conflict. Prosecutors can select cases that carry the greatest social stigma as a way to validate the experience of victims — to stamp conduct as wrongful and illegal even if that conduct was widespread during the conflict. In practice this would mean prosecuting a range of cases about sexual violence as a way to condemn as wrongful behavior that was widespread during the conflict. Third, prosecutors should pursue the interests of victims by using the law to develop as much information as possible about the conflict, and the harms that came to the victims.