We with our faithful escort moved
Along the brink of the vermilion boiling,
Wherein the boiled were uttering loud laments.
People I saw within up to the eyebrows,
And the great Centaur said; “Tyrants are these
Who dealt in bloodshed and in pillaging.
Here they lament their pitiless mischiefs; here
Is Alexander, and fierce Dionysius
Who upon Sicily brought dolorous years.”
Dante Alighieri, The Divine Comedy, Vol. 1: Inferno, Canto 12.
1. Introduction
The idea that the perpetrators of mass atrocities deserve greater reprobation than other offenders is not new. Dante Alighieri's Seventh Circle of Hell holds all the sinners who committed violence but reserves tougher punishment for the souls of the tyrants responsible for multiple deaths. Those who murdered just one person stand in a pool of boiling blood only with their feet, while the tyrants are submerged in it up to their eyebrows. It was not until recently, however, that the idea of bringing to justice senior perpetrators received legal formalization. The Nuremberg and Tokyo tribunals signified the decisive move of the international community towards accountability of leaders for war crimes committed under their watch. The proliferation of ad hoc tribunals and hybrid courts in the 1990s and early 2000s contributed to further development of international criminal law. The creation of a permanent institution – the International Criminal Court (ICC) – solidified these achievements.
These developments are welcome, but the discipline still struggles with establishing its core principles.Footnote 1 Moreover, there are signs that popular opinion is shifting toward the view that the ICC is losing its moral authority.Footnote 2 One can attribute this trend to over-ambitious goals pursued by international criminal law, which strives to achieve a plethora of conflicting objectives, but often fails to acknowledge its own limitations.Footnote 3 The boundaries of international criminal justice became particularly evident at the end of 2014, when the ICC Prosecutor decided to halt investigation in the Darfur, Sudan situation, dormant since 2009, due to the lack of co-operation in the region and the absence of adequate pressure from the UN. Another big step on the road of admitting the enforcement deficiency of international criminal law was the withdrawal of charges against Kenyan President Uhuru Kenyatta, motivated by Kenya's failure to co-operate and thus the inability of the ICC to obtain sufficient evidence.Footnote 4 The related case against Vice-President William Samoei Ruto proceeded to trial with significant resistance from Kenya and the African Union but was eventually terminated following the ruling by the Appeals Chamber that recanted witness testimony cannot be admitted as evidence in this case.Footnote 5 While witnesses are missing or unwilling to testify, the question of accountability looms large, undermining the Court's authority.
Lack of agreement about its goals is one of the reasons why the ICC struggles to assert its credibility.Footnote 6 One manifestation of the misbalance of objectives is the frequent counterpoising of the rights of victims and the rights of the accused.Footnote 7 Another example is the ‘soul searching’ of the ICC when it comes to the scope of due process guarantees afforded to suspects and accused persons.Footnote 8 This article seeks to develop a counterweight consideration that qualifies the conflicting objectives of international criminal law and serves as an interpretative tool for the substantive and procedural aspects of the discipline. The argument is that the goals of international criminal law are framed by its symbolic mission in a sense that the discipline promotes values upon which the international community purports to agree, while simultaneously lacking coercive features characteristic of domestic criminal justice systems. This peculiarity has implications for the possible reach of international criminal law and its modus operandi.
It is important to make three preliminary observations clarifying the conceptual framework of the present analysis. First, this article treats symbolism as a policy consideration, or a limiting factor, both in judicial reasoning in specific cases and in a wider discourse about the goals of international criminal justice. Adopting this standpoint helps qualify the expectations vested in the discipline, thus contributing to its overall legitimacy. Admittedly, an earlier draft of this article, inspired by the literature on ‘expressivism’, attempted to conceptualize symbolism as an overarching aim of international criminal law.Footnote 9 This idea is not entirely abandoned here because symbolism is, indeed, one of the goals of international criminal justice and it often overshadows other goals. The Akayesu judgement delivers a particularly strong message of condemnation as it represents the first international conviction for the crime of genocide.Footnote 10 At the same time, it proved difficult to argue that there exists one single overarching aim because different stages of proceedings and different cases emphasize different values. This is particularly true for the ICC, which is designed as a subsidiary criminal justice mechanism that is only activated if the state in question is unable or unwilling to genuinely carry out investigations and prosecutions.Footnote 11 In Colombia, where the ICC conducts preliminary examinations, for instance, it is plausible to maintain that the goal of reconciliation currently takes precedence over the other goals.Footnote 12
Thus, the article contributes to the debate by treating symbolism as a policy consideration rather than a goal. One does not exclude the other. It is possible to claim that the ICC's decision to charge Mr. Lubanga with the crime of conscripting or enlisting children under the age of 15 years pursues the symbolic aim as it emphasizes the importance of protecting children in armed conflicts.Footnote 13 One may equally argue that there is a pragmatic rationale behind the decision to select this specific crime among many other atrocities committed in the Democratic Republic of Congo as a focal point of the first trial at the ICC.Footnote 14 International criminal law is symbolic in a sense that it does not possess the same resources and coercive power as its domestic counterpart. Thus, difficult choices as to the scope of international prosecutions, the nature of charges, and the selection of situations and persons under international scrutiny are inevitable. If one views symbolism as a policy consideration, rather than a goal, then the decision in Lubanga may be understood as motivated by a desire to bring to the world's attention war crimes against children, against the background of the limited resources and investigative challenges at the ICC.
The second important clarification pertains to the nature of the present analysis as a descriptive or normative exercise. The argument is that symbolism as a policy consideration is implicit in the architecture of international criminal justice. In this sense, the discussion is descriptive. At the same time, there is room for more express recognition of the pragmatic considerations driving decisions of international courts and tribunals. Acknowledging the limitations of the system makes international trials more transparent, thereby contributing to their legitimacy.
The discussion about the place of policy constraints on international criminal law had a ‘false start’ in the early case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) in the case of Erdemović. Footnote 15 The majority in this case ruled that duress is not a complete defence in international law, relying, in part, on the policy of harm prevention that bars this defence in a number of jurisdictions. Judges McDonald and Vorah opined:
If national law denies recognition of duress as a defence in respect of the killing of innocent persons, international criminal law can do no less than match that policy since it deals with murders often of far greater magnitude.Footnote 16
Judge Cassese vehemently disagreed with this approach arguing that ‘practical policy considerations’ must not guide decision-making in international criminal law because the ICTY is called upon to apply international law only. Thus, introducing extraneous elements, such as policy considerations, runs counter to the principle of legality.Footnote 17 This article sides with the former view. As argued below, the principle of legality is more likely to come into question when judges are confronted with problems requiring creative engagement with the law. With the ICC struggling to maintain its legitimacy, time is ripe to rejuvenate the debate commenced in Erdemović back in 1997 and buried ever since.Footnote 18
The third and final clarifying point relates to terminology employed in the present analysis. The terms ‘goals’, ‘aims’, and ‘objectives’ denote aspirations of the discipline and are used interchangeably. The term ‘policy consideration’ refers to pragmatic concerns stemming from the natural boundaries of international criminal justice. ‘Symbolism’ is both an aim of international criminal justice and a rationale that underlies policy choices. The choice of the word ‘symbolism’ is explained in the subsequent section.
The article proceeds as follows. Section 2 explores the connection between legitimacy and policy considerations in domestic and international criminal justice systems. Section 3 discusses the way in which acknowledging the symbolic role of international criminal law qualifies its various proclaimed goals. The analysis in the final section is more specific and focuses on the ways in which symbolism, as a constraining feature implicit in the design of the international criminal justice system, affects interpretation of substantive and procedural law. The two case studies are the principle of individual criminal responsibility and the suspect's right to legal representation at the ICC.
2. Legitimacy as a foundation for policy constraints
The legitimacy of international criminal law rests on sources distinct from those underlying domestic criminal law systems. This applies to all three types of legitimacy – social, legal, and moral.Footnote 19 The state's authority to enforce criminal law against its citizens does not undergo the same degree of scrutiny as the one to which international criminal law is subjected. The reason for this is the state's traditional central role in ensuring coercive responses to conduct that is harmful to society. International criminal law surpasses familiar national boundaries and facilitates interaction between the accused, the victims, and the global community.
2.1. Legitimacy and policy constraints on domestic criminal justice systems
In a domestic context, the state's interference with a citizen's behaviour is morally justified when it is reasonably necessary to prevent harm.Footnote 20 The bulk of criminalized conduct corresponds to the public's perception of what is harmful and is thus largely undisputed. Criminal law is conservative and guards its outer limits precisely because its moral legitimacy rests on the sentiments of the population, which are not easily changed. Any move toward (de)-criminalizing certain conduct, such as, for instance, the possession of marijuana, attracts a lot of attention and stirs up debates. Amendments to the content of criminal law must pass through a rigorous legislative process, which operates according to previously stipulated rules. Once the legislative hurdle is overcome, however, there is little contestation of the legal validity of the amendments because there exist authoritative pre-determined criteria for identifying these rules as such.Footnote 21 The courts are left with the task of applying law that is valid and binding.Footnote 22
Perceived legitimacy of institutions administering sanctions is not a given within the state. There are many factors that affect people's confidence in their criminal justice system. At the same time, the overall design ensuring its existence rarely comes into question. The theories of social contract or co-operation underlie our understanding of the state as a guardian of the dominant values in society.Footnote 23 State institutions traditionally assume the role of a moderator between the offender, the victim, and the broader community, thus containing vengeance.Footnote 24 The existence of these institutions is perceived as legitimate by the public due to their indispensable role in the functioning of the society.
The design of a criminal justice system and its sources of legitimacy have a bearing on the way it formulates and frames its aims. This statement holds true for both the general aims that change depending on the stage of a criminal process and may entail crime prevention, ensuring fair trial guarantees for the accused, due respect for the victims, protecting prisoners’ rights, etc. It also applies to more specific punishment aims that justify imposing a criminal sanction on the offender.
Constraints on the goals ensure the ‘reality check’ that prevents the system from losing its legitimacy by not delivering what it promises. These ‘constraints’ on the declared aims are usually pragmatic and are political considerations.Footnote 25 For example, the principle of legal certainty runs counter to the policy of social defence – a position asserting that some vagueness in criminal law is beneficial because it allows the enforcement authorities and the judiciary to deal flexibly with new variations in misconduct without waiting for the legislature.Footnote 26 The desert theory of punishment entails reduced sentences for juvenile offenders because the time of adolescence calls for greater tolerance of bad choices.Footnote 27 Policy considerations that counterbalance and limit the goals of any given criminal justice system usually stem from the role of the state as a protector of certain values. Such institutional arrangements provide room for weighing conflicting interests, while simultaneously protecting the system from unjustified rigidity that may obstruct its smooth operation.
2.2. Legitimacy and policy constraints on international criminal law
International criminal law needs to develop its own harmonizing mechanism. It struggles with defining and prioritizing its goals without clearly stating the policy objectives that frame and limit these goals. This, in turn, affects its legitimacy, which is distinct in nature from that of the domestic criminal justice systems. The question of the legal validity of international law is complex and deserves more space than can be afforded here. Suffice to say that from a positivist perspective, international law lacks a basic rule providing general criteria of validity; it simply consists of a set of primary rules of obligation which are not united.Footnote 28 There is no universal set of pre-determined criteria that render international rules valid. For example, the Rome Statute of the ICC is binding on the state parties that ratified it, but not universally. Amending this document is a lengthy and laborious process and, in cases of changes to the provisions dealing with substantive offences, the result is not automatically binding on all state parties.Footnote 29 Consequently, international (criminal) law develops in a pluralistic way; the weight of determining the validity and scope of legal provisions shifts to judges and policy makers. The process of identifying a custom exemplifies this point as it entails the collection and analysis of relevant authorities before a determination is made whether a certain rule has achieved customary status and is thus binding.Footnote 30 It follows that legitimacy in its purely legal sense often depends on coherent and correct interpretation of sources of international law. Judicial discretion exercised with reference to well-developed goals and policy considerations is essential in this process.
The key question is how to ensure compliance with international rules when the rule of recognition is missing? H.L.A. Hart maintained that it is perfectly conceivable in a less advanced legal culture (such as international law) to have binding rules supported with appropriate forms of social pressure that do not refer to the ultimate rule of the system.Footnote 31 This point leads to the notions of moral and social legitimacy in international criminal law. The social pressure rests on global acceptance of the moral foundation of international criminal law. There appears to be near universal consensus about the prohibited conduct. It is now widely accepted that crimes against humanity, war crimes and genocide are not to be tolerated, even if committed by those holding the highest ranks. One of the biggest tangible achievements of international criminal justice is changing the way in which the world community perceives political violence.Footnote 32 The opinion is more divided, however, when it comes to accompanying provisions that facilitate the attribution of individual criminal responsibility and ensure the functioning of the system – the modes of liability, questions of immunity of public officials, and the scope of rights afforded to different parties in the process. The content of these provisions and their application to specific cases frequently become subject to disagreements, partially due to the lack of explicit acknowledgement of the limitations of international criminal law.
International criminal law is particularly susceptible to deficit in the sphere of perceived, or social, legitimacy for two main reasons. First, the utility of the whole enterprise of international criminal justice is still occasionally called into question. Thus the justifiability of the mere existence of the system is undermined.Footnote 33 Secondly, the international system lacks an enforcement apparatus akin to that of the state, on which the latter relies heavily for its executive powers.Footnote 34 Support from national governments as well as local populations and civil society is thus essential to keep the international criminal justice system operational. Failure to secure enforcement may lead to the denial of justice as, for instance, happened with the withdrawal of charges against Kenyan President Kenyatta and the termination of the proceedings against Vice-President Ruto, or the shelving of investigations in the case against the President of Sudan, Omar Al-Bashir. Here, the ICC arguably met the threshold of legal legitimacy – the evidence to proceed was lacking, as were the powers to arrest the accused or collect necessary data. Hence, the difficult choices made by the Prosecutor did not formally contradict the Rome Statute. Supporting these choices with clear policy objectives may further assist in overcoming deficiencies in the domain of social legitimacy.
2.3. Symbolism as a constraint on international criminal law
There is a growing trend in legal scholarship recognizing the ‘didactic’ or ‘expressivist’ goal of international criminal law.Footnote 35 The article by Mirjan Damaška entitled ‘What is the Point of International Criminal Justice?’ served as an inspiration and a starting point for the present analysis.Footnote 36 In this piece Damaška eloquently argues that the goals of international criminal law are unranked and lacking one primary objective, which poses serious problems for the discipline. Damaška addresses the problem by proposing a leading objective, which he calls ‘didactic’ or ‘socio-pedagogic’. He maintains that international criminal courts should place more emphasis on suasion and strengthen a sense of accountability for international crimes by exposing these extreme forms of inhumanity.Footnote 37 The purpose is to establish moral minima that are universal.Footnote 38
Mark Drumbl calls the same goal ‘expressivism’ and maintains that an expressivist punishes to strengthen faith in the rule of law among the general public, as opposed to punishing simply because the perpetrator deserves it or because potential perpetrators will be deterred by it.Footnote 39 This reasoning is close to retribution, which is about treating the wrongdoer as a moral agent – punishment conveys blame through deprivation.Footnote 40 The communicative or expressive function of punishment is a valid attribute of the retributive rationale.Footnote 41 Harmen Van der Wilt contends that the role of the expressive theory of international criminal law is to imbue the general public with core values and with faith in the rule of law.Footnote 42
Express references to the educational role of international criminal justice in the jurisprudence of international courts are rare, primarily due to the difficulty of stating this goal without sliding into rhetoric detached from the case and devoid of normative content. The following passage from Aleksovski is sometimes cited in support of the limited recognition of the symbolic function of international criminal law:Footnote 43
[A] sentence of the International Tribunal should make plain the condemnation of the international community of the behaviour in question and show that the international community was not ready to tolerate serious violations of international humanitarian law and human rights.Footnote 44
Similarly, the Krstić appeal judgement referred to genocide as: ‘a crime against all of humankind, its harm being felt not only by the group targeted for destruction, but by all of humanity’.Footnote 45
While in agreement with the point regarding the significance of the expressive goal, it is argued here that the very same idea about the role of international criminal law also translates into a policy consideration that assists in limiting its other goals and underlies the exercise of discretion in substantive and procedural matters. This distinction calls for a new term that better serves the purpose of describing the said policy consideration.
‘Symbolism’ is a suitable term in the context of a present discussion for two main reasons. First and foremost, the term ‘symbolism’ best emphasizes the confines of the discipline. As discussed in the previous subsection, the perceived legitimacy of international criminal law largely depends on its acceptance as morally or legally binding by individual states and other actors. Without such recognition, the ICC lacks coercive powers to pursue its goals in a meaningful way. Acknowledging the limitations of international criminal law creates a tool for moderating the discussion between the ICC and other stakeholders. Symbolism is a generic rationale underlying these limitations and may translate into more specific considerations such as, for example, the need to ensure the expeditiousness of an international trial in the light of the advanced age of the accused. This logic underlies the decision to divide the case into separate trials, as occurred at the Extraordinary Chambers in the Courts of Cambodia.Footnote 46
Secondly, framing the mission of international criminal law as ‘symbolic’ rather than ‘didactic’ or ‘expressive’ better reflects the way in which information travels in the modern world. With the proliferation of social media and availability of easily accessible news outlets, there is a growing bond between individuals and the wider community. This is a positive sign for international criminal law – a discipline that reaches beyond state borders and places great importance on outreach. New forms of communication powered by modern technologies do not, however, ensure a straightforward dialogue whereby a message is publicly broadcast and delivered to the recipients with its content unchanged. Any information goes through a variety of filters that shape its meaning before it reaches the addressee.
This extra ‘filtering step’ is inevitable because it controls for the abundance of information and permits individuals to form a sense of personal solidarity with the content of the message. An event is reduced to a symbol relatable to personal sentiments and convictions.Footnote 47 Consider the lowering of the Confederate flag in South Carolina in the aftermath of the shooting of black churchgoers in Charleston, South Carolina in June 2015. This symbolic gesture sparked debate in the US because, for some, the flag epitomized injustices of the racial order of the South, while others considered it merely a part of the historical narrative.Footnote 48 Another example is the provocative dance performed by Russian teenagers dressed in costumes resembling the design of ribbons used to commemorate the end of the Second World War. The performers were jailed for several days for hooliganism, while the video of this dance went viral, causing outrage in some and feelings of sympathy in others.Footnote 49
Identifying the goal of international criminal law as ‘expressive’ or ‘didactic’ emphasizes its communicative and educational function but skips the last, interpretative step, whereby the message transmitted via the Rome Statute and international criminal law judgements is processed and framed in a way that makes it relatable to the general public. Abner Cohen helpfully outlines the functional dimension of symbols. In an essay on the anthropology of power and symbolism, he lists several terms capable of describing the patterns on normative action, including ‘culture’, ‘custom’, ‘myth’, and ‘ritual’. These terms, Cohen argues, are primarily expressive. In contrast, the term ‘symbol’ embodies an additional instrumental dimension – symbols for individuals are ‘fundamental mechanisms for the development of selfhood and tackling perennial problems of human existence, such as life and death’.Footnote 50
A good example of symbolism being both a goal and a limitation of international criminal law is the controversy surrounding the draft United Nations Security Council resolution ‘condemning in the strongest terms the crime of genocide in Srebrenica as established by judgements of the ICTY and ICJ’.Footnote 51 This document called upon all sides to accept the tragic events at Srebrenica as genocide; this step being a prerequisite for reconciliation.Footnote 52 The intention of the drafters was to commemorate the twentieth anniversary of the genocide at Srebrenica by, inter alia, framing the judgments of international courts not just as legal determinations of fact and law but also as symbols of the universal condemnation of these events. This initiative faced inevitable constraints of hard political reality: a veto by Russia on the grounds of the text of the resolution being ‘confrontational and politically-motivated’.
This example underscores the symbolic importance of language used in the Rome Statute and the judgments of international courts and tribunals.Footnote 53 For the most part, these documents use language to describe certain events and concepts. Did the accused commit certain crimes? Was the evidence presented at trial sufficient to establish the responsibility of an individual? Was the witness's testimony reliable? Some pronouncements carry performative potential, however. The theory of performative speech holds that there is a distinction between constative and performative statements – the former merely describe or report whether something is true or false, while the latter actually executes an act.Footnote 54 For example, statements such as ‘leaders must not go unpunished’ or ‘rape is a war crime’ do not only refer to the status of law or facts in a particular case, but also set a threshold for the future; they perform a certain action by creating a legal precedent accepted as morally and legally binding by different actors across various communities.
3. Symbolism as a constraint on the goals of international criminal law
How precisely can symbolism as a policy consideration contribute to a better understanding of the goals of international criminal law? As discussed earlier, it is important to note that there is no agreement about the exact list of these goals, let alone their ranking. Different stakeholders maintain different views depending on their particular involvement with the field. The statutes of the ad hoc tribunals and hybrid courts are diplomatically silent, while the Preamble of the Rome Statute of the International Criminal Court expressly talks about the objective of ending impunity and preventing crimes, without any further elaboration.Footnote 55 The case law focuses more narrowly on the aims of punishment and stays primarily within the confines of retribution and deterrence.
In contrast, the UN executive bodies are more generous in stipulating the objectives of international criminal justice. Their position as political rather than judicial bodies spares them from day-to-day concerns encountered by courts.Footnote 56 Aspirations of various actors in the field of international criminal justice can be generalized as the following aims – retribution, deterrence, justice for victims, reconciliation, and narrative setting. They are all equally ambitious as they reflect the desire to make amends for past atrocities, address the present-day demands of justice, and set a positive precedent for the future. The problem with this all-encompassing approach lies in the conflicting nature of the sought-after aims. Moreover, not all of them can be achieved through punishment. Even in cases when the sentence can theoretically meet the goal, there are limitations stemming from the architecture of the international criminal justice system, its sources of legitimacy and the nature of collective violence.
The latter limitation translates into a paradox: while it is essential to justify punishment of the offenders convicted in the international context because of the gravity of the crimes in question and the impact of their deeds on the community, it is particularly challenging to do so because of the unusual context in which they are committed.Footnote 57 The nature of collective violence is such that it may distort the message that internationally sanctioned punishment is intended to transmit. It may fail to deter future offenses because of the culture of impunity often associated with high level offenses and it may fail to communicate condemnation if the offender is portrayed as a hero domestically.
This section offers a selective analysis of some of the declared goals of international criminal justice in the light of the constraining nature of symbolism.
3.1. Retribution
Retribution is both a punishment rationale borrowed from domestic criminal law and a broader aim of international criminal law that resonates with the calls for ‘bringing to justice those responsible’ and ‘re-establishing the rule of law’. The philosophy of retribution treats punishment as deserved suffering administered in the name of justice.Footnote 58 Penalty plays an important role in conveying the censure of the crime both to the offender and to a wider audience.Footnote 59
Limited support for this theory derives from the classical philosophy of Immanuel Kant, which views the principle of punishment as a categorical imperative.Footnote 60 Those who commit crimes violate the public order by treating themselves as exceptions to the law,Footnote 61 and must be penalized for the sake of re-establishing the equilibrium. Kant rejected the imposition of punishment for the sake of attaining any public good, because that, in his view, amounts to treating humans as means to an end.Footnote 62 When it comes to measuring the amount of penalty to be administered, Kant suggested the principle of equality.Footnote 63
The modern account of the retributive, or ‘just deserts’, philosophy is less categorical; it no longer requires that the suffering of the offender is equal to the harm done. Rather, it calls for punishments that are individual and proportionate to the seriousness of criminal conduct.Footnote 64 The relative seriousness of a crime is to be measured by the harm produced by the crime and the culpability of the offender.Footnote 65 The idea behind this principle is that individuals should be treated as rational beings capable of making choices, and it is the choice to offend that is chastised, not the individual himself.Footnote 66
As early as 1996, the Erdemović Trial Chamber of the ICTY adopted, ‘retribution, or “just deserts”, as legitimate grounds for pronouncing a sentence for crimes against humanity, the punishment having to be proportional to the gravity of the crime and the moral guilt of the convicted’. Footnote 67 Since Erdemović, the sentencing goal of retribution has not received further elaboration in the case law of the ad hoc tribunals. Footnote 68 The ICC in Lubanga also kept the discussion about the gravity of the offence rather generic.Footnote 69 The more recent Katanga judgment is slightly more detailed in that it acknowledges that the sentence has two important functions: reprobation, which is the expression of stigma surrounding the crime and its perpetrator, and deterrence, which aims to prevent future offenses.Footnote 70 The sentence must be proportionate to the gravity of a crime to contain the desire of vengeance.Footnote 71
There is at least one major factor distorting the traditional retributive rationale in the context of international criminal law: the enormity of the crimes in question. This feature comes into direct conflict with the principle of proportionality – it seems almost impossible to make punishment ‘fit’ international crimes.Footnote 72 Jens Ohlin developed a theory adapting the conventional principle of proportionality to sentencing in international law.Footnote 73 He noted that the sentences handed down by the ICTY suffer from a conflict between two types of proportionality: the offence-gravity proportionality and the defendant-relative proportionality. The former refers to the traditional consideration that the punishment is commensurate to the gravity of the offence, while the latter denotes the trend among judges to ensure that less culpable defendants are punished less severely than more culpable ones.Footnote 74 While offence-gravity proportionality is normatively superior, the defendant-relative proportionality often overtakes judges’ reasoning when they hand down unacceptably lenient sentences to ‘reserve space’ for those allegedly more responsible.Footnote 75
Ohlin's uneasiness with the application of the central consideration of retributive sentencing rationale, the principle of proportionality, to international sentences is well grounded. The problem stems from the limitations of international criminal law as such, targeting only a fraction of offenders. It is conceivable to apply the proportionality principle when punishing those few selected for prosecution, but it is impossible at an international level to ensure that the punishment is distributed equally among all the offenders for their offences. This concern relates both to the selectivity of prosecutions when only a few individuals are charged, and, more generally, to the selectivity of enforcement of international criminal law that targets individuals in some states, but not others, depending on a number of extrajudicial factors. This is in stark contrast with domestic criminal law, which, at least at the level of a statute, presupposes universal application. Fletcher refers to this requirement that the law punish the guilty, all the guilty, as ‘positive legality’.Footnote 76 The punishment in domestic law is administered in a systematic fashion because all members of society are presumed to share the values and agree to submit the offender to censure.Footnote 77
Therefore, the essential component of the retributive theory – retribution in the distribution of punishment – is distorted a priori by artificially limiting the pool of those running the risk of being accused. HLA Hart highlighted the difference between retribution as a justifying aim and retribution in the distribution of punishment, the latter having a value independent from the former.Footnote 78 Embracing the fact that international criminal law does not ensure proportionality in the distribution of punishment removes some of the concerns related to the dominance of the defendant-relative considerations in the judges' reasoning.
International criminal justice lacks the consistency of domestic law in the imposition of punishment. This distorts proportionality, the central principle of retribution. Since international trials cannot punish all the guilty, they can only be ‘samples’ of justice where political reality allows for prosecution and conviction. If one accepts, however, that the role of international criminal law is symbolic, this caveat no longer stands out as odd. The very few instances when responsible individuals stand trial become representative of the broader consensus in the international community that rejects political violence as a threat to international peace and security; they serve as a message of condemnation and convey the mature status of the international society.Footnote 79 One may even take a step further and argue that, because the reach of international criminal law is limited, it is possible to divorce two elements of retribution that are usually intertwined in the domestic context: stigmatization and sanctioning. It then follows that hard treatment applies to a limited number of individuals that come before international courts, while the narrative in the judgment clarifying past wrongs speaks to a wider community. Footnote 80
3.2. Deterrence
Deterrence is another domestic sentencing rationale adopted by international criminal courts and tribunals. It corresponds to the desire of the international community to put an end to violations and prevent their recurrence. In contrast with retribution that is looking back at the past deeds of the offender, the deterrent rationale is forward-looking. It aims at reducing crime through the fear of punishment.Footnote 81 In the words of Cesare Beccaria, ‘the purpose of punishment . . . is none other than to prevent the criminal from doing fresh harm to fellow citizens and to deter others from doing the same’.Footnote 82 Jeremy Bentham, one of the main proponents of this utilitarian theory of punishment, argued at the end of the eighteenth century that in order to prevent reoccurrence of the offence it is important to make the criminal afraid of offending, which can be achieved by making the pain of punishment outweigh the pleasure of offending.Footnote 83 Bentham held that excessive penalties are justified because they deter a particular offender from re-offending (specific deterrence) and instigate the fear of committing crimes in all members of the public (general deterrence).Footnote 84
Erdemović and other early ICTY cases acknowledged the limited value of deterrence at sentencing by reiterating that general prevention is ‘intimately related’ to the reprobative function of legal punishment, but ‘must not be accorded undue prominence’.Footnote 85 Deterrence rationale occasionally underpins international criminal judgements without any express stipulation as, for instance, in the Taylor case decided by the Special Court for Sierra Leone. The accused's political leadership in Liberia placed him in a special category for deterrence purposes: the severe penalty of 50 years’ imprisonment in his case highlights the abuse of power and the violation of the duty of care by the former head of state.Footnote 86 Such a harsh punishment sends the message that not even the highest-ranking state official enjoys impunity for international crimes, thereby potentially deterring future abuses.Footnote 87
There are views that more weight should be attributed to deterrence when deciding on sentences of the accused in international trials.Footnote 88 This is reasonable if one takes into account a number of caveats. First, there is the need to address the main criticism of the deterrence philosophy, namely the difficulty of measuring the effectiveness of sanctions designed to prevent offending.Footnote 89 There is no solid empirical basis supporting the idea that potential perpetrators are intimidated by international indictments and penalties.Footnote 90 Difficulties with enforcement and dependence on co-operation of individual states only underscore questions about the effectiveness of deterrence in international criminal law. Yet those few judgments gain a lot of international publicity, and may serve as a deterrent by alerting potential perpetrators of the general risks associated with offending.
The recent termination of proceedings against Kenyan Vice-President Ruto only underscores this dilemma.Footnote 91 On the one hand, the strong accountability pull following post-election violence in Kenya in 2007–2008 alerted both potential candidates from competing parties that any calls for violence will be subject to international scrutiny, paradoxically prompting them to ‘team up’ and form an alliance with the goal of avoiding further inquiries by the international community. This deterrent effect was undermined when ICC judges stopped the proceedings in this case due to lack of evidence.Footnote 92 This is when symbolism is both a limitation and a goal of international criminal law.
The addressees of international criminal law include the wider public, as it triggers ‘pre-deterrence’.Footnote 93 Pre-deterrence implies creating conditions whereby individuals do not even contemplate taking part in political violence because of certain assumptions about lines not to be crossed, or the moral minima, instilled in their minds. The symbolic role of international criminal law is thus antecedent to its deterrent power. Both goals seek to establish a normative standard that shapes individual decision-making. The difference is in the timing – symbolism starts working before general deterrence and targets even those who do not contemplate offending.
The second limitation of the deterrent rationale in international criminal law is the type of audience it targets. Deterrence in a national context addresses both the general public (general deterrence) and the particular wrongdoer (specific deterrence), whereas international criminal law is particularly concerned about the former, not the latter.Footnote 94 Specific deterrence is not central for international criminal justice since the potential offenders it targets are different from those affected by the escalated sanctions in domestic law. In a national context, recidivists are one of the main addressees of the deterrent penalties because of the belief that the lawbreakers with a prior record are more likely to re-offend.Footnote 95 In contrast, international criminal law deals with a highly specific category of criminals – usually high-level, first-time perpetrators responsible for the commission of the gravest crimes.
Finally, international criminal law requires a rethinking of the deterrent rationale, domestically conceived, in the light of some criminological considerations. One has to adjust this goal to the context of mass atrocities whereby power is frequently exercised to induce offending and not desistance.Footnote 96
Consider several explanations of criminality offered by national criminology: some researchers believe that people offend because of their exposure to an unfavourable environment; others claim that economic inequality prompts criminality, while the third group argues that humans are acting as rational beings and seize any suitable opportunity to offend.Footnote 97 What unites these approaches is that criminality is regarded as a form of deviance from the norm. Thus, responses of the domestic criminal justice system are tailored to ensure conformity and prevent deviance.Footnote 98 Power is exercised to prevent harm to others.Footnote 99 Consequently, the responses of the national legislator and judiciary are tuned towards maximizing the inconvenience of criminality.
Turning to perpetrators of mass violence, the same assumptions do not always hold true. This type of criminality often stems from obedience rather than from deviance. Those committing international crimes frequently see themselves not as an exception to the law, but as the enforcers of ideological rules or military orders. The famous portrait of Eichmann painted by Hanna Arendt illustrates this point: she depicted him as a Nazi bureaucrat who did not enter a criminal system based upon sadistic considerations but to pursue his career, and whose conscience functioned in the expected way for about four weeks, whereupon it began to function the other way around.Footnote 100 This narrative is, however, being contested as evidence of Eichmann's sadistic inclinations has emerged.Footnote 101
It is plausible that the context of collective violence coupled with the exercise of authority place inevitable limitations on the freedom of choice available to perpetrators. Even in the absence of direct pressure to comply with immoral or illegal orders, the rationality of those placed in the middle of violent chaos may be affected by the intense emotions stemming from intergroup hatred.Footnote 102 In these circumstances, is desistance from criminality extraordinary? Arendt answered this question in the positive, arguing that the substitution of values promoted by the Nazi party resulted in changes in the way functionaries conceived of their actions – instead of perceiving themselves as murderers, they felt that they were involved in something historic, grandiose, and unique.Footnote 103 This way the duty to obey orders overshadowed any possible conscientious objections.Footnote 104
There are many implications for the doctrine and practice of international criminal law following from these criminological observations about the nature of collective violence and the way it affects offending.Footnote 105 For the present analysis, it is important to acknowledge that the operation of the deterrent rationale is distorted not only because of the limited reach of international sanctions, but also because of the nature of criminality at stake. Symbolism as a goal of international criminal law may help address the latter problem. The discipline places great importance on outreach activities. They may contribute to inducing rightful disobedience when violence is about to happen, deescalating tensions, and breaking patterns of compliance by challenging criminal structures and organizations.
3.3. Justice for victims
Securing justice for victims is arguably the most controversial goal of international criminal law. Faithfully accommodating this goal within the system requires a number of difficult policy choices. One possible implication of prioritizing this aim over the other is adopting victim-based reasoning in international criminal law.Footnote 106 There are dangers in this approach, however. Robinson pointed out to that the tendency to adopt victim-focused teleological interpretations often comes at the expense of the fundamental principles of a liberal criminal justice system. Robinson's argument is that teleological methods of interpretation inherent in human rights law may not always be compatible with the principle of legality and other criminal law principles designed to protect the rights of the accused.Footnote 107 A teleological approach as such does not pose insurmountable obstacles to fairness and due process and is compatible with the rules of treaty interpretation set out in the Vienna Convention on the Law of Treaties.Footnote 108
The problem arises, however, when the interests of the accused are balanced against the interests of victims.Footnote 109 This unqualified balancing act compromises the ideals of the liberal criminal justice system because of the confusion about the aspirations of international criminal law and what it is able to achieve through individual sentences meted out to the accused. In these situations the limitations of international criminal law are most obvious: punishing only a tiny fraction of perpetrators does not translate automatically into realizing justice for victims for they may wish to see more comprehensive trials, a show of remorse by the convicted person, or harsher penalties. These few trials are, however, symbolic and should be treated as such. If the limitations of the system are acknowledged, it is possible to avoid tensions between the interests of victims and the interests of the accused by rather focusing on the consistent administration of law in accordance with the principles of fairness and due process. These factors predetermine the quality of individual judgments, which, in turn, contribute to the legitimacy capital of international criminal law.
3.4. Reconciliation
It is primarily the UN executive organs that promote the broader reconciliatory function of international criminal law.Footnote 110 The courts view reconciliation more as a ‘side product’ of international trials.Footnote 111 The idea is that bringing to justice those responsible would soothe tensions in the affected societies. This vision is misconceived because the policy of selective prosecutions characteristic of international criminal justice has the potential of polarizing populations in the affected areas rather than bringing different groups together.
It is true that real reconciliation and social solidarity do not require consensus, but rather finding a way to live without it.Footnote 112 However, it still remains highly questionable that individual sentences rendered by international courts and tribunals can contribute in a meaningful way to paving the path to this transformation of society.Footnote 113 The manner in which international trials may contribute to reconciliation is by empowering local communities in their pursuit of accountability at the national level. International trials symbolize the pursuit of justice, provided they are conducted in a way that is seen as fair. The principle of complementarity at the ICC reinforces this idea by emphasizing the primacy of domestic prosecutions.Footnote 114 Increased accountability at the domestic level should result in ‘change from within’ – the sign of true reconciliation.
3.5. Narrative-setting
The purpose of establishing the historical record of events finds support within the UN and among legal scholars, but not necessarily among judges.Footnote 115 The supporters of the ‘narrative-setting’ function of international criminal law view it as a medium for communicating a certain account of ‘historical truth’.Footnote 116 For example, Teitel draws a distinction between ordinary criminal trials focusing on individual criminal responsibility and legal proceedings happening in transitional societies. The latter serve as instruments of shaping collective memory by virtue of contrasting conflicting accounts embedded in political, social, and religious frameworks.Footnote 117
Admittedly, in the aftermath of atrocities, criminal proceedings inevitably discuss the context and the larger picture of events. However, is it reasonable to vest a single trial, albeit an international or a transitional one, with the responsibility of producing a historically accurate account of mass atrocities? The challenge is that a court of law, even an international one, is not designed to make value judgments about history, but rather to adjudicate on a narrow set of facts, using the constrained list of available tools. The legal inquiry follows its own rules distinct from other types of investigations. Thus, attempts to reach ‘the ultimate truth’ by, for example, artificially bringing in offenders from different sides to the conflict is likely to produce a distorted picture of events, both historically and legally speaking.Footnote 118
Accepting that international criminal law is symbolic in that it allows for prosecuting only a handful of perpetrators releases some pressure from the courts to unveil the whole truth about the conflict. The rhetoric of symbolism emphasizes the limited scope of legal inquiry. Limiting aspirations helps avoid misrepresenting the courts as truth and reconciliation commissions. These institutions are undoubtedly valuable mechanisms of transitional justice, but not, strictly speaking, instruments of international criminal law.
4. Symbolism as a tool for interpreting substantive and procedural law
4.1. Substantive law
The principle of individual criminal responsibility carries fundamental importance in international criminal law but its content and boundaries are highly disputed by practitioners and academics alike.Footnote 119 Liberal domestic criminal law theories are built upon the principle of individual autonomy, which respects an individual's freedom to act as a rational being.Footnote 120 Pursuant to this principle, a person can only be held liable for voluntary conduct.Footnote 121
International criminal law recognizes this central rule, which can be traced back to the first international criminal law judgment in history famously proclaiming that, ‘[c]rimes against international law are committed by men, not by abstract entities’.Footnote 122 The statutes of the ad hoc tribunals and hybrid courts name traditional modes of liability designed to reflect the individual nature of criminality: committing, planning, instigating, ordering, aiding, and abetting.Footnote 123 The ICC Statute contains a list which is slightly more sensitive to the group aspect of international criminality: committing, ordering, soliciting, inducing, aiding and abetting, and contributing to the commission of a crime by a group of persons acting with a common purpose.Footnote 124
In addition to those expressly mentioned in the statutes, there are ‘custom-made’ forms of responsibility developed by the courts to address precisely the situations with several accused removed from the scene of the crime.Footnote 125 The ICC inferred a German-inspired ‘(in)direct co-perpetration’ model from the text of Article 25(3)(a) of the Rome Statute dealing with commission.Footnote 126 For a long time, the ICC viewed commission as the most appropriate form of responsibility for addressing mass crimes. The explanation for this is the alleged hierarchy of the forms of participation implicit in the Rome Statute, which, in turn, created a pressure on the Court to utilize the ‘stronger’ form – commission – to reflect the gravity of the crimes in the jurisdiction of the ICC.Footnote 127
The same belief that various forms of complicity (ordering, planning, or instigating) do not, taken alone, fully capture the criminal responsibility of the accused prompted the International Criminal Tribunal for Rwanda (ICTR) to adopt an extended view of commission in several cases. For example, the Appeals Chamber in Gacumbitsi held that ‘direct and physical perpetration’ need not be confined to physical killing but can also include other acts including ‘directing’ and ‘playing a leading role in conducting and, especially, supervising’.Footnote 128 Finally, a mode of liability not explicitly mentioned in the statutes of the ad hoc tribunals and hybrid courts, but which has frequently been employed to address situations of group criminality, is the joint criminal enterprise, or the ‘common purpose’ liability. The notion was introduced early on – in the Tadić case – and became one of the most common forms of responsibility in international criminal law.Footnote 129
The newly-developed forms of liability challenge the legitimacy of international criminal law in a strictly legal sense because they are not expressly mentioned in the statutes and their customary status is often questionable. The reliance of the ICC doctrine of (in)direct co-perpetration on the standard accepted by a single domestic legal system, namely Germany, also fails to qualify as a general principle of law derived from national laws of legal systems in the world.Footnote 130
The forms of criminal responsibility, continuously moulded by judges to fit infinite scenarios of mass criminality, thus test the principle of legality in international criminal law. This principle provides that there is no offence without a law and that laws are known, promulgated, and their meaning clearly defined.Footnote 131 Two aspects of this principle are particularly troubling here: the element of fair warning, which demands certainty in the description of offences, and fair labelling, which requires the offenders are labelled and punished in proportion to their wrongdoing.Footnote 132 The lens of symbolism helps with establishing the boundaries of these elements. The collective nature of offenses addressed by international criminal law and its inherent selectivity set limitations on the principle of legality. International criminal justice can only target a fraction of those responsible for mass atrocities and must account for the fact that their specific input is closely intertwined with that of other perpetrators, possibly beyond the reach of the system. Thus, the biggest challenge of the discipline lies in balancing the accused's individual contribution and the collective nature of mass offenses.Footnote 133 In the past, at Nuremberg and Tokyo, this problem was solved by employing the notion of conspiracy and a fact-based approach. Modern international criminal law has created new modes of liability to account for the collective aspect of criminality.
Treating offenders that exhibit varying degrees of culpability in the same way jeopardizes not only the principle of legality but also the moral and social legitimacy of international criminal law. Such a practice is at odds with the ordinary moral intuitions of those who observe trials.Footnote 134 If the acts of the accused are not accurately described in the judgment, international criminal justice becomes prone to criticism of bias and ‘cutting corners’. One possible way to mitigate this tension is to allow some flexibility when applying the new modes of liability to a specific case, while, at the same time, ensuring consistent and impartial administration of law with full respect to the rights of accused.Footnote 135 The judges and prosecutors carry the burden of providing, in a consistent manner, a sufficient degree of specificity in the charges and appropriate warning to allow sufficient time to prepare a defence.
4.2. Procedural law
The symbolic role of international criminal law is also a procedural tool for interpreting the administration of justice. It underpins the exercise of discretion in situations where the judges are called to determine the scope of procedural guarantees and the extent to which these guarantees may be sacrificed to achieve other goals. Broad judicial discretion is built into the architecture of the Rome Statute. Pursuant to Article 64(2) of the Statute, it is incumbent upon the Trial Chamber to ensure that a trial is fair and expeditious and is conducted with full respect for the rights of the accused and due regard for the protection of victims and witnesses. This is lex generalis providing a general framework for the exercise of judicial discretion at the ICC. The Chamber views specific issues through the prism of this rule. The idea is to indicate a starting point for a balancing exercise involving the assessment of various conflicting considerations.
The provision on discretion is essential because it equips the judges with the tools to interpret the circumstances of a specific case in accordance with the principles of fairness and due process, while simultaneously taking into account other factors. For this process to be seen as legitimate, it is important that law be interpreted in an impartial and consistent manner, regardless of the content of the substantive provisions.Footnote 136 Systematic application of the principles of fairness and due process enhances the integrity of trials, which become a matter of quality not quantity, or, in other words, a trial's outcome is as important as the process whereby the courts achieve it.Footnote 137 Acknowledging the limitations of international criminal law and the nature of interests at stake contributes to the transparency of the process.
The admissibility proceedings in the Al Senussi case at the ICC exemplify the exercise of judicial discretion in a situation when several goals of international criminal law came into conflict. In this instance, the judges had to determine, inter alia, whether the lack of domestic legal representation of Mr. Al Senussi rendered Libya unwilling to genuinely prosecute the case against him. An affirmative answer to this question would have led to the finding of admissibility of the case before the ICC.
The normative framework of the ICC left the extent of due process guarantees granted to suspects in domestic investigations and prosecutions somewhat unclear. According to the chapeaux of Article 17(2) of the Rome Statute, in determining unwillingness the Court must have regard to the principles of due process recognized by international law, and subparagraph (c) of the same provision ensures that domestic proceedings are conducted independently and impartially.Footnote 138 Moreover, Article 55(2)(c) of the Rome Statute expressly grants the right to legal assistance to persons questioned during investigation by national authorities. These provisions taken together allowed certain room for manoeuvre when it came to assessing Libya's unwillingness in light of the lack of legal representation. The judges had to make a normative determination as to the qualitative aspect of the violation of Mr. Al Senussi's rights and the impact of this violation on the admissibility proceedings.
The Appeals Chamber in its final assessment chose to exercise its discretion to uphold the principle of complementarity rather than expand the demands on states’ compliance with human rights law. The judges acknowledged that legal representation may become fatal in this case but, at the same time, it was not Libya's unwillingness that prevented the appointment of legal counsel in domestic proceedings, but rather the security situation in the country.Footnote 139 The Appeals Chamber decided that the purpose of admissibility proceedings is not to rule on human rights matters; thus, to render a case admissible to the ICC, the violation in question must be, ‘so egregious that the proceedings can no longer be regarded as being capable of providing any genuine form of justice to the accused’.Footnote 140
In the following rather apologetic paragraph the judges acknowledged that they do not wish to downplay the importance of legal counsel in the present case, but the nature of the breach did not reach the required threshold. The Appeals Chamber further clarified that references to due process, independence, and impartiality in Article 17(2) of the Rome Statute primarily refer to situations when the suspect may evade justice as a result of the state not being willing to genuinely investigate and prosecute.Footnote 141 The violations of the rights of a suspect per se are not sufficient for a finding of unwillingness, and accepting otherwise would bring the ICC very close to a human rights court overseeing domestic jurisdictions, which is inconsistent with the intention of Article 17.Footnote 142
Measuring the violation in qualitative terms for the purpose of determining a state's unwillingness is a controversial solution as it invites ‘slippery slope’ types of criticism.Footnote 143 At the same time, it is important to stress that a number of policy considerations stemming from the symbolic role of the discipline were at stake. The judges made this determination being cognizant of a number of factors such as the difficulty of apprehending the suspect and the need to reinforce the position of the ICC as a complementary mechanism by affording states a certain margin of appreciation in enforcing due process guarantees in national proceedings.
5. Conclusion
The plethora of opposing goals raises expectations about what international criminal justice may realistically achieve too much. The hope of fulfilling each of the stated objectives without first qualifying them becomes the yearning for an ultimate success, which paradoxically reveals the weakness of the discipline. Without more open discussion about policy constraints that reduce expectations and restrain multiple ambitions, the system of international criminal justice loses coherence and becomes prone to criticism of ineffectiveness and over-politicization.
Domestic criminal law is robust and benefits from the coercive powers of the state, with policy considerations traditionally balancing out conflicting interests. In contrast, international criminal law is more fragile because its legitimacy is not backed by the same degree of coercion. It is particularly susceptible to the lack of perceived legitimacy because support by states and civil society is essential for keeping the system operational. This process of gaining trust requires transparency in stipulating the guiding principles but also in admitting the limitations built into the system.
Acknowledging the symbolic role of international criminal law serves as a counterweight consideration, balancing its proclaimed goals. It also assists in the exercise of judicial discretion when it comes to interpreting substantive and procedural law in specific cases.
