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Symbolism as a Constraint on International Criminal Law

Published online by Cambridge University Press:  03 January 2017

MARINA AKSENOVA
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Abstract

International criminal law is being pulled in different directions by various conflicting considerations – deterrence, retribution, justice for victims, reconciliation, and setting the historical record. This trend is detrimental to the survival of the system as it erodes coherence and undermines its legitimacy. One may suggest that international criminal law needs a principle objective to bring order to the system. This article argues that while this statement may be true, it is equally important to have a discussion about pragmatic policy choices underlying the system. Acknowledging that the role of international criminal law is symbolic assists with constraining over-ambition implicit in the discipline. Treating symbolism as a policy consideration places necessary checks on other goals proclaimed by international courts and UN executive bodies and also serves as a tool informing the exercise of discretion in international criminal law.

Keywords

discretionlegitimacypolicy considerationpurposes of international criminal lawsymbolism
Type
INTERNATIONAL CRIMINAL COURTS AND TRIBUNALS
Information
Leiden Journal of International Law , Volume 30 , Issue 2 , June 2017 , pp. 475 - 499
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2017 

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References

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129 Prosecutor v. Tadić, Appeals Judgement, ICTY Case No. IT-94-1, A. Ch., 15 July 1999, at 195–226.

130 Rome Statute, supra note 11, Art. 21(1)(c).

131 Ibid., Art. 22(1); J. Rawls, A Theory of Justice (1999), at 209.

132 Ashworth, supra note 25, at 87. Judge van den Wyngaert stressed the importance of ‘fair labeling’ in her concurring opinion to ‘Judgment Pursuant to Article 74 of the Statute’. See Prosecutor v. Mathieu Ngudjolo Chui, Concurring opinion of Judge van den Wyngaert to Judgment Pursuant to Article 74 of the Statute, ICC-01/04-02/12-4, T. Ch. II, 18 December 2012, at 28.

133 Osiel argues in favour of modifying familiar legal classifications to suit international offences. See Osiel, supra note 96, at 21.

134 The principle of fair labelling requires maintaining the distinctions ‘to ensure a proportionate response to law-breaking, thereby assisting the law's educative and declaratory function in sustaining and reinforcing social values’. See Ashworth, supra note 25, at 86.

135 Rawls, supra note 131, at 211.

136 Ibid., at 51.

137 According to Franck, the legitimacy of international rule-making institutions is achieved if those addressed by the rules perceive the rule or institution as having come into being and operating in accordance with generally accepted rights of due process. He examined these four qualities of legitimacy with respect to the emerging right to democratic government. See T.M. Franck, ‘The Emerging Right to Democratic Governance’, (1992) 86(1) AJIL 46, at 51.

138 Both representatives for the victims and the defence made arguments to that effect. Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled ‘Decision on the admissibility of the case against Abdullah Al-Senussi’, ICC-01/11-01/11 OA6, A. Ch., 24 July 2014, at 204–10 (hereinafter Al-Senussi Appeal Judgment).

139 Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi, Decision on the admissibility of the case against Abdullah Al-Senussi, ICC-01/11-01/11, Pt. Ch. I, 11 October 2013, at 292; Ibid., at 181, 189.

140 Al-Senussi Appeal Judgment, supra note 138, at 190, 229–30.

141 Ibid., at 218.

142 Ibid., at 219–20.

143 Ibid., at 191.