A Hierarchy of the Goals of International Criminal Courts
66 Pages Posted: 20 Apr 2017 Last revised: 22 Feb 2018
Date Written: January 1, 2017
Nearly ten years ago, Professor Damaška realized that there is a significant gap in discussions about the goals of international criminal courts: while there is a great deal of literature about particular goals, there has been no attempt to establish a hierarchy of those goals. As a result, much of the literature operates in a vacuum. Many scholars have argued that a particular goal, considered on its own, is the most important, but there is virtually no discussion of the value of each goal relative to the others.
This Article represents the first attempt to systematically assess and compare the goals of international criminal courts to one another. To compare them, it focuses on their expected value. This is the value of the benefit that would occur if the goal were to be achieved multiplied by the likelihood that it will be achieved. This approach allows for goals of differing value and likelihood of achievement to be compared to one another. The goal with the highest expected value is the goal that is most important and that international criminal courts should prioritize.
This Article demonstrates that it is possible to establish a hierarchy of the goals of international criminal law. Moreover, it finds that the most important goal in the hierarchy is the prevention of violations of international criminal law. This is perhaps surprising given that many scholars appear to have concluded in recent years that prevention is not achievable. Nevertheless, it is clear that preventing violations would have enormous value. Perhaps more importantly, recent empirical research strongly suggests that courts can prevent violations. The result is that prevention is moderately likely to occur and has an extremely high value when it does occur. As such it has a higher expected value than any of the other goals commonly attributed to international tribunals including retribution, establishing the historical record, providing closure for victims, or fostering post-conflict reconciliation. Accordingly, international criminal courts should make preventing violations their priority.
Keywords: International Criminal Court, ICC, goals, purposes, prevention, peace and security, retribution
JEL Classification: K33
Suggested Citation: Suggested Citation