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What is the point of international criminal justice?

Damaska, Mirjan
June 4, 2015

Source: (2008) Chicago-Kent Law Review. 83(1): 329-365.

While deterrence may lend support to doctrines of responsibility that are insensitive to the degree of personal guilt,
the insensitivity could make more difficult the acceptance of courts’ decisions in communities affected by international
crime, reducing their educative impact. … Despite this disappointment, however, general deterrence, along with retribution,
is still assigned a prominent place in discussions about the goals of international punishment. … Consider that
even if international criminal judges have no transcending ambitions to make contextual determinations, the contextual
elements in the definition of international crimes can raise issues of great complexity: events involving a range of conduct
of many people – often over wide areas and over considerable time periods – must be determined. … But the cost
and complexity of the undertaking is not the only reason for doubting the wisdom of attempting to use criminal proceedings
to provide a comprehensive portrayal of events surrounding massive human rights violations. … But this enlarged
role of victims, even if properly controlled by the court, clashes with incentives needed to maintain the vitality of bipolar
trials. … There are two main reasons why it is questionable to accord deterrence pride of place among the objectives
of international criminal courts. … The doctrine provides that persons who designed a plan, or exhibited a common
purpose, that amounts to (or merely involves) the commission of an international crime are responsible as perpetrators
of crimes committed in execution of this plan or purpose, provided that they engage in some act which – although not
criminal by itself – can be interpreted as a contribution to the ultimate crime. … To begin with, it is not clear that individuals
in leadership positions would escape scot-free from the grasp of justice if liability doctrines were made more
precise, and their reach narrowed to accord with common understanding of culpability. (Excerpt).


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