In the Conclusion, I offer some remarks about the relation between the argument I developed over the course of the book, and whether applying it to our structurally unjust real world leaves the argument vulnerable to a number of criticisms. I discuss two issues in more detail: first, whether the unequal distribution of international crime prosecutions taints the legitimacy of the International Criminal Court (ICC), and whether the ICC does in fact deter crimes. Both issues are serious, but ultimately, I conclude that they do not weaken my argument. I end the book by highlighting just how radically the project of international criminal justice departs from earlier strategies for dealing with war and human rights violations.

In this chapter, James Mehigan focuses on the contribution of international criminal law (ICL) to the peaceful settlement of international disputes. More specifically, this chapter looks at the aims of ICL and analyses how effective it has been at achieving its international law and criminal law objectives. It argues that ICL does not make the broader contribution to dispute settlement that many commentators hope for because it provides a form of retributive justice that does not necessarily engender a sense of justice for victims, nor contribute to reconciliation or fact-finding. After looking at the impact of ICL in the Former Yugoslavia, this chapter concludes that there is little evidence to show that ICL achieves any of its aims other than individualising guilt and punishing offenders – in other words, ICL’s contribution to the settlement of international disputes is minimal and should not be overstated.

Chapter 10 discusses the main findings of this book concerning the politics of international criminal law practice and explores the question whether the norms and practices associated with the assessment of individual criminal responsibility are likely to continue changing in the future. This chapter presents a pluralist understanding of ‘legalism’, as a concept that entertains a range of different visions of international criminal justice. Next, this chapter highlights the importance of understanding the normative dynamics taking place inside the international criminal justice field, namely the battle of different visions of legalism over the construction of criminal responsibility rules, for analysing trial outcomes at the Court. Finally, Chapter 10 observes that it is possible that the restrained approach to criminal responsibility, displayed at the Bemba Appeals Chamber Majority and the Gbagbo and Blé Goudé Trial Chamber Majority, can create a backlash within the international criminal justice community, even if that backlash does not end up prompting reform at the ICC in the short term.

The chapter outlines the feminist social theory and socio-legal methodology that the book uses to examine ‘international justice’. It shows why this sociological framing is crucial for understanding ‘international justice’ as an expression of global social relations and values. The chapter explains how a feminist sociological understanding of ‘international justice’ is developed by studying existing forms of legal and feminist justice. These are exemplified by the International Criminal Tribunal for the former Yugoslavia and the Women’s Court (former Yugoslavia) and their treatment of conflict-related sexual violence. The chapter sets out the building blocks of the feminist social theory of legal and feminist justice, drawing on Marxist, psychoanalytic, and feminist theory. This theory describes these distinctive forms of justice, considers how these forms express historically specific social relations, and analyses whether they reproduce existing social orders or produce new social relations. The chapter also sets out the socio-legal methodology for building this social theory. It explains the socio-legal case study methodology and mixed methods used to study international justice.

This chapter provides an account of why and how the dominant “atrocity aesthetic” model identified in the previous chapter has persisted, despite remaining itself, grounded in unstated and untested assumptions concerning the fundamental nature of the causal dynamics of mass harm causation. It does so by examining the substance, structure, and application of ICL in light of insights from social constructivist norm development theories, and research on the role aesthetic considerations play in individual and social meaning-making processes. Through this analysis, this chapter identifies a variety of factors within the substance and practice of ICL that encourage actors to rely heavily on aesthetic perception when identifying potential international crimes and assessing their relative gravity. These factors include: the complexity of many atrocity situations; the continued presences of considerable zones of ambiguity within ICL; the extreme selectivity of ICL investigations and prosecutions; and the spectacular visibility and self-evident nature of many historical, recent and ongoing situations involving the commission of genocide, crimes against humanity, and/or war crimes.

This chapter identifies some of the broader effects of the social and legal invisibility of aesthetically unfamiliar atrocity processes beyond merely adding to the so-called impunity gap that afflicts international criminal justice. It does so by demonstrating how aesthetic biases favoring horrifically spectacular crimes not only undermines the goals and values ascribed to ICL itself, but also contributes to a variety of negative outcomes that go far beyond missed prosecutorial opportunities. ICL’s myopic focus on horrifically spectacular crimes raises a host of troubling questions concerning what harms are prioritized and whose interests are served by international criminal justice. This chapter considers some of these implications, specifically those relating to theories of punishment, and ICL’s role in shaping historical memory, how transitional justice, peacebuilding, human rights issues are framed and pursued, along with global justice more broadly.

This chapter assesses the role aesthetics play in the social construction of dominant shared understandings of the so-called core crimes of ICL: genocide, crimes against humanity, and war crimes. It demonstrates how, since the inception of ICL, widely shared understandings of these crimes have remained grounded in an aesthetics of horrific spectacle, which I refer to as the “atrocity aesthetic.” That is, shared understandings of both atrocity and international crime are associated with spectacular acts of horrific violence and abuse, reflecting deeply held, if rarely articulated, assumptions concerning how genocide, crimes against humanity, and war crimes will manifest themselves and the means through which they may be committed.

This concluding chapter offers some thoughts on the broader implications of the arguments made in this book. It specifically considers how the book’s contention that a dominant “atrocity aesthetic” influences how international crimes are recognized and conceptualized relates to broader debates concerning the role of international law and international criminal justice, such as those related to questions of determinacy, power, sovereignty, and Global North–South relations. It also considers how aesthetic biases may affect the actual purposes served by international criminal justice as a global project, raising the concerning possibility that one unstated purpose international criminal prosecutions serve is to provide cathartic relief to distant publics exposed to the ugliness of atrocity violence, rather than focusing on the interests and needs of those most directly affected by such violence. It concludes with a call to abandon outdated understandings of atrocities as horrific and spectacular eruptions of violence, and to reconsider what international crimes are in light of the many forms atrocity violence may actually take.

This chapter looks at how other ICTR actors influenced the way in which the archive was contested. It begins by returning to the themes set out at the end of Chapter 2 and explores how the legal actors of the court initially pursued an expansive approach to the trials in search of truth, justice and reconciliation. However, this approach to prosecutions changed over time as the tribunal began to focus simply on getting as many verdicts as possible, as quickly as possible. As such, the conception of justice underpinning the archive became far more restricted and more closely resembled a more traditional form of retributive justice. This, then, shows the fragmenting of the tribunal’s initial purpose. This chapter identifies three main factors behind this shift: the solidification of the legal rules that underpinned the trials; the relationship between the tribunal and other UN organs – and particularly the Security Council’s decision in early 2000s that the tribunal had to close down as quickly as possible; and the ICTR’s acquiescence to the RPF’s demands that the tribunal halt investigations into RPF crimes during the genocide.

Chapters 4 and 5 explore how various subject positions (or what Foucault describes as enunciative modalities) influenced how knowledge was produced within the archive, from which perspective records were constructed and, ultimately, what was to be archived. In Chapter 4, ‘Contesting the Archive’, I focus on the witnesses, who played a far more significant role in constructing the archive than scholars normally credit. Whilst this shows how legal actors constrained what witnesses could record within the archive, it also demonstrates how witnesses were able to contest these parameters both in terms of which crimes would be recorded, but also how the law was to account for violence. This contestation also destabilised many of the objects and subjects that the legal discourse tried to produce, such as what constituted a victim or perpetrator.

Quintiliano Saldaña Garcia-Rubio (1878–1938) was a leading proponent of legal pragmatism in European criminal law circles in the interwar period. The first part of this chapter surveys his formative years and his early academic professional development, examining the influence of Franz von Liszt’s Marburg School of Criminal Law on his academic interests and early professional career. The second examines Saldaña’s seminal theory of ‘universal social defence’ and his 1925 Hague Academy course which included one of the first projects for an international criminal code, and reviews Saldaña’s legislative contribution to the 1928 Spanish Criminal Code project, an example of a proto-fascist criminal code. The third follows Saldaña’s career during the Second Spanish Republic, his criminal law and criminology work in the development of his theory of ‘legal pragmatism’, and revisits his engagement with the mid-1930s international legal debates on terrorism in the framework of the International Bureau for the Unification of Criminal Law. The conclusion revisits the mysterious circumstances of Saldaña’s death during the Spanish Civil War and the dark legacy of his legal thought on the criminal law system of General Franco’s regime.