The Sensibility and Sense of International Criminal Law

Intolerable large‐scale crimes seem to render the justification of international criminal justice self‐evident. It just feels right. But why? This article exposes international criminal justice to the ‘why’ question by applying the most frequently evoked models of the working mechanisms of rational, utilitarian, enlightened criminal justice. It demonstrates that the basic pre‐conditions for their effective working according to the prevailing theories do not exist or get fulfilled. Regardless of the common outspoken statements referring to utilitarianism, the real answers to the ‘why’ question seem to echo the retributivist tone of justification. Everybody knows that prevention does not work, even if we hope it might one day. Everybody knows, but the knowledge has no consequences. Prevention is cited simply because of the void of alternatives, the rational ones. What would be left if the international criminal justice system were to be stripped of its utility and rationality? International criminal justice comes close to a religious exercise of hope and perhaps of deception. The ideology of a disciplined, mathematical structure of responsibility serves as a relieving strategy to measure the immeasurable. The seemingly unambiguous notion of guilt creates consoling patterns of causality in the chaos of intertwined problems of social, political and economic deprivation surrounding the violence. The article concludes with a question: Could the rational and utilitarian purpose lie elsewhere than in the prevention or suppression of criminality?