The International Criminal Court

Within international law, the International Criminal Court plays a key role in promoting retributive justice by prosecuting individuals responsible for the most heinous international crimes. This essay explores the concept of retributive justice, its meaning in the context of the ICC, and the challenges faced in its pursuit.

The International Criminal Court operates on the premise that impunity for perpetrators of genocide, crimes against humanity, crimes of aggression, and war crimes is unacceptable.

Retributive justice, a fundamental principle of legal philosophy, seeks to ensure that those who commit egregious crimes face punishment commensurate with their actions.

It is a system of criminal justice that focuses on punishment, rather than deterrence or the rehabilitation of offenders and nowadays the ultimate justification for it remains contested and problematic.

Central to retributive justice are the notions of merit and desert. Immanuel Kant uses a debt metaphor to discuss the notion of just desert. Citizens in a society enjoy the benefits of a rule of law. According to the principle of fair play, the loyal citizen must do their part in this system of reciprocal restraint. An individual who seeks the benefits of living under the rule of law without being willing to make the necessary sacrifices of self-restraint is a free rider. He or she has helped themself to unfair advantages, and the state needs to prevent this to preserve the rule of law.

It is suffered as a debt that the wrongdoer owes their fellow citizens. Retributive justice in this way aims to restore both victim and offender to their appropriate positions relative to each other.

Retributive justice is in this way backward-looking. Punishment is warranted as a response to a past event of injustice or wrongdoing. It acts to reinforce rules that have been broken and balance the scales of justice.

Retributive justice is a matter of giving those who violate human rights law and commit crimes against humanity their “just deserts.” Punishment is thought to reinforce the rules of international law and to deny those who have violated those rules any unfair advantages. Together with restorative justice, retribution is concerned with restoring victims and offenders to their rightful position.

A perennial objection to ICL is that its retributive legalism could be counterproductive to justice efforts. Post-Apartheid South Africa and Spain’s democratization after the Franco regime are examples in which reconciliation rather than criminal trials proved effective.

In many cases criminal proceedings seem inopportune in a given case, because opening investigations would not “serve the interests of justice”.

Given that no form of punishment will be ever universally popular, the most common critic to retributive justice is that it shows the tendency of becoming obsolete as societies become more civilized. It becomes easy to slip from retributive justice to an emphasis on revenge. Because revenge typically involves anger, hatred, bitterness, and resentment, resulting punishments can be excessive and cause further antagonism. In addition, punishments dictated by revenge do not satisfy principles of proportionality or consistency. This is because revenge leads to punishments that vary according to the degree of anger provoked. Wrongs that do not provoke anger will receive no response. Acts that provoke a great deal of anger will, on the other hand, provoke an overly intense response and lead to reciprocal acts of violence.

First of all, it’s fundamental to separate retributive justice from sheer revenge: retributive justice should never be personal. Therefore, it needs to have inherent limits and employ clearly defined procedural standards.

By prosecuting and punishing individuals for their role in international crimes, the ICC serves as a deterrent against future violations. The fear of prosecution can influence potential perpetrators, both state and non-state actors, to reconsider their actions.

The focus should be on achieving a balance between restorative and retributive justice. This must be done whilst bearing in mind the rights of both victims and defendants, given that the ultimate purpose of the ICC should be to contribute to long lasting peace.  Balancing both aspects of justice is a matter of judicial engineering where the prosecution is exposed to one of its greatest challenges in contemporary international criminal law.