The International Criminal Court seeks to end impunity for the world’s worst crimes, in order to contribute to their prevention. But what is its impact to date? This book takes an in-depth look at four countries under scrutiny of the ICC: Afghanistan, Colombia, Libya and Uganda. It puts forward an analytical framework to assess the impact of the ICC on four levels: on the domestic legal systems (systemic effect); on peace negotiations and agreements (transformative effect); on victims (reparative effect); and on the perceptions of affected populations (demonstration effect). It concludes that the ICC, through its expressive function, is having a normative impact on domestic legal systems and peace agreements, but it has brought little reparative justice for victims and it does not necessarily correspond with affected populations view justice priorities. The book concludes that justice for the world’s worst crimes has no “universal formula” that can easily be captured in law.

The ICC was meant to end impunity for the world’s worst crimes, thus contributing to their prevention. But twenty years after its establishment, its “theory of change” remains unclear, and few studies focus on its impact on the ground. To assess the Court’s impact, it is necessary to define the assumptions underlying its establishment. While deterrence is one such assumption, to date the evidence that the ICC effectively deters crimes is lacking. Other assumptions can be found in the Rome Statute itself, or in the expressed intentions of the Assembly of States Parties or senior officials of the Court. Lessons can also be drawn from impact studies of other international criminal tribunals. These sources indicate that the ICC should play an expressive function by engaging in norm projection. The chapter identifies four intended effects of the Rome Statute and ICC, including systemic effect on domestic legal systems; transformative effect on peace processes; reparative effect on victims; and demonstration effect, relating to its expressive function among affected communities. These four effects form an analytical framework to assess the impact of the ICC.

The International Criminal Court seeks to end impunity for the world’s worst crimes, in order to contribute to their prevention. But what is its impact to date? This book takes an in-depth look at four countries under scrutiny of the ICC: Afghanistan, Colombia, Libya and Uganda. It puts forward an analytical framework to assess the impact of the ICC on four levels: on the domestic legal systems (systemic effect); on peace negotiations and agreements (transformative effect); on victims (reparative effect); and on the perceptions of affected populations (demonstration effect). It concludes that the ICC, through its expressive function, is having a normative impact on domestic legal systems and peace agreements, but it has brought little reparative justice for victims and it does not necessarily correspond with affected populations view justice priorities. The book concludes that justice for the world’s worst crimes has no “universal formula” that can easily be captured in law.

Morality rests upon impersonal reflection, and our moral judgments aim to capture moral reasons for action, which like all reasons are essentially normative in character

In this chapter, Samantha Matherne solves a number of tensions in Cassirer’s dispersed writings about art. Does art align with the “expressive” or the “representative” function of consciousness? And is art, like myth and religion, a cultural domain that we are supposed to surpass toward mathematics and natural science, or is it also situated on the highest rungs of human culture? Matherne first argues that Cassirer defends a cognitivist rather than an expressivist theory of art, according to which art represents the intuitive forms of external objects and emotions. Next, she attributes to Cassirer a “liberal” theory of cultural teleology, which allows for culture to progress toward different goals. On this basis, she holds that, for Cassirer, although mathematics and natural science are more advanced than art with respect to progress toward conceptual knowledge, art is more advanced than all the other symbolic forms when it comes to intuitive insight.In this way, Matherne elucidates not just the place but the place of priority that art has in Cassirer’s system of culture.

Green considers a strong version of the semantic thesis, according to which legal statements are descriptive statements solely about social facts. He starts from the foundational thesis of positivism, the social thesis, which has it that the existence and content of the law are ultimately based solely in social facts about a community. But he notes that there are two versions of this thesis. Under the reduction version, a legal system and its laws consist of social facts. Under the assignment version, they are not social entities at all; they are norms, understood as abstract objects. But the grounds for assigning these abstract objects to a community are ultimately solely social facts. Focusing on the assignment version, he asks whether the semantic thesis follows from the social thesis, and, if that answer is no, the extent to which legal statements actually conform to the semantic thesis. He argues that assignment positivists can conclude that the answer is negative because, for them, legal statements describe abstract objects. For Green, this simple account of the semantics of legal statements is superior to expressivist accounts and to Raz’s account.

Chapter 3, “The Form of Reflexivity and the Expression of Self-Presence”, explores the role of transcendental apperception for inner experience according to the Transcendental Deduction (B) of the first Critique. By showing the insufficiencies of two alternative views defended in the literature, namely the psychological view and the logical view, the chapter argues that transcendental apperception is the capacity for reflexive consciousness in general. Its characteristic form, the general form of reflexivity, is the most general condition on any conscious representation and can be expressed by the phrase “I think”. The chapter concludes by arguing that the phrase “I think”, if in fact attached to a representation in thought, expresses self-reference to oneself as individual thinker, yet without determining oneself.

Daniela Demko develops the basic features of a comprehensive expressive theory of punishment for international crimes. She highlights the communicative significance of two functions of international punishment: the trust in norm validity and to assign responsibility. While focusing on the communicative aspects of international punishment, she also shows how retributive and preventive theories and the specific purposes of punishment in international criminal law – the protection of victims and the rejection of a collective guilt thesis – can be integrated into an expressive theory of international punishment. In addition, Demko identifies the protection of the truth, the protection of victims and the rejection of a collective guilt thesis as criminal purposes specific to international criminal law, and integrates them into the statement of content of international punishment.

Sergey Vasiliev undertakes a thorough analysis of international criminal tribunals’ statements on theories of punishment. Vasiliev concludes that courts’ statements display ‘ritualism’ and ‘monotony’, and that due to their ‘hypnotioc repetition’ are of limited practical value. While deterrence and retribution can be identified as the main objectives referred to by judges, the underlying principles and rationales are taken from domestic criminal law doctrine, without ever questioning their suitability in the context of international criminal law. The contents of these goals and objectives, however, are coloured with a reference to the goals set for the establishment of international criminal justice institutions as such. As a result of his analysis, Vasiliev comes to the conclusion that the few statements on theories of punishment by international courts and tribunals are mere speech acts, ‘by which courts preach to international criminal law’s founding articles of faith’. They say that they punish for retribution and deterrence, but in reality the main purpse of punishment is related to expressivism and didactics. In his view, expressivism emerged as kind of the ‘ultimate catch-all objective’ and ‘meta justification’ for punishment, in order to reproduce and reinforce the normative belief system upon which the enterprise of international criminal prosecution rests.

Klaus Günther considers the contents of the message communicated with international punishment. In his outline of the communicative structure of criminal law in general, he considers the different stages of the communicative sequence and, at the same time, elaborates on the different messages sent at each stage to the offender, the victims and the society. He then asks the question of whether these messages can be transferred from the domestic to the international level, i.e., the domestic analogy. While a transfer is possible, Günther argues that some modifications are necessary in particular regarding the normative community as addressees. Günther explains that due to the dual status of each individual, as a member of the ‘international community’ and as a member of the domestic normative community, addressees of international criminal norms at the same time are also always bound by domestic laws. This dual status requires a ‘critical reflective attitude’ with regard to the human rights legitimacy of the domestic law. And in case of a – direct or indirect – norm collision between domestic law and international law, international criminal law delivers the message to disobey the demands of the domestic system: What is required from the addressee of international criminal law norms is civic courage and the willingness to non-conformist behaviour.