The limits of judicial idealism: Should the International Criminal Court engage with consequencialist aspirations?

Source: (2014) Penn State Journal of Law & International Affairs. 3:1-112.

Drawing on the experience of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”), this article argues that idealism about what international criminal justice mechanisms can
achieve has lead to ideologically-driven judicial decision-making in
international criminal law.” ICL idealism manifests itself in the belief
that international criminal prosecutions can achieve a wide range of
aspirations and goals, both international and local. According to the Secretary General of the United Nations, international criminal
tribunals pursue a number of aims including “bringing to justice
those responsible for serious violations of human rights and
humanitarian law, putting an end to such violations and preventing
their recurrence, securing justice and dignity for victims, establishing
a record of past events, promoting national reconciliation, reestablishing
the rule of law and contributing to restoration of
peace.” Idealism about the institutional capacity of international
tribunals also found expression in the reports of Judge Antonio
Cassese, the first President of the ICTY and ICTR.22 Among the
institutions’ “Future Priorities,” Judge Cassese confidently stated that
the Tribunals were establishing an unassailable “historical record …
thereby preventing historical revisionism,” which he lauded as “a
most important function of the Tribunal.” In the case of the ICTY
in particular, Cassese added that in their judicial proceedings
international judges endeavored “to establish as judicial fact the full
details of the madness that transpired in the former Yugoslavia.” (excerpt)