Of Deviance and Criminality

The Mechanisms of International Criminal Law

The Sensibility and Sense of International Criminal Law by Immi Tallgren is a highly critical paper that works to call out our maudlin attachment to the architecture of international criminal law (ICL) at present. This article focuses on the question of ‘why’ we do ICL in its current formations, regardless of our knowledge that its structure is incredibly flawed. Tallgren notes that the structure around prevention or preventative methods of the criminalization of genocidaires is not a functional mechanism, yet we as an international community tend to abide by antiquated norms around criminality. The norms structured around our fear and guilt that someday we may be faced with another Hitler-esque dictator thus need these mechanisms in place for the sake of prevention. Tallgren argues that no matter how hard we romanticise that the current framework surrounding prevention will work- it simply will not. Tallgren offers that there are other methods of dealing with issues surrounding mass atrocities and mass violence that lie outside the “prevention or suppression of criminality.” It is my contention that the current framework of ICL fabricates the problematic notions of prevention as the only way to approach international conflicts and perpetuates criminality as a global phenomenon that ignores empirical context. My paper will be divided in three sections. The first section will illustrate arguments in favor of evolving away from preventative structures of criminal law, and “criminality as a social construct”. The second section will look into alternative perspectives on prevention citing Akhavan and Megret, the Ultima Ratio theory proposed by Tallgren, and lastly critique the current system of ICL as a purely symbolic methodology worthy of partial relevance but should not suffice as our only mechanism of dealing with contemporary international crimes.

There is a understanding held by the international community that there must be preventative structures in place to hold states accountable to an arbitrary threshold that is “ human rights”. There is a universal understanding that prevention can be a deterrent to further crimes. The law is a handbook for moral “good.” The absorption of the necessary social norms around good behaviour and deviance in effect will result in conforming to what Tallgren calls cognitive conditions. These cognitive conditions are ingrained into societies psyche and “the likelihood of negative consequences of breaking them and of the severity of the punishment that may be imposed." In effect, criminal law must enhance itself by creating social milieux that craves a habitual dependence of moral goodness. Tallgren states "punishment is justified by the gain of less crime in the future, either by the offender or by others." Yet the measurement of prevention is exhausted and unsystematic. There is no active algorithm in place to properly scale the impact of prevention. In that case, we turn to prevention as a mechanism of avoiding human guilt and concludes in symbolic gravity rather than actual social change. Tallgren also points out that empirically speaking, the measure of prevention is deemed limited and inconsequential. How can we properly measure the success of preventative human rights? The answer is: we cannot. When “faced with the horrors of the criminality, we feel we have no other option” in Tallgren’s words herself, there lies a “lame” and dormant premise behind why we continue to concede in prevention based ICL.

Tallgren comes from a place situated between that of a “Crit” and that of a realist critique. She is both highly critical of that nature of ICL in its current state and also somewhat optimistic in her solutions. Yet scholars can be critical without earning the title of a “crit.” Akhavan and Tallgren point out that for prevention to work, there must be a cognisant understanding by those in power that mass violence is not worth the risk. “Leaders [must] engage in some form of rational cost-benefit calculation, the threat of punishment can increase the costs of a polity that is criminal under international law.” Tallgren challenges Akhavan by pointing out the belief of the potential to “scare off” agents of the state by way of international humanitarian law. According to Akhavan’s logic “the potential criminals would read the resolutions of the Security Council and stop their grave violations of international humanitarian law amounting to a threat to the maintenance of international peace and security.” Even the prosecution of few can be enough to deter further warlords from committing heinous acts. Tallgren comments, “a mercenary or a soldier of a nationalistic movement would be indoctrinated to refrain from further breaches of law and to support the shared values of the international community if one of his co-fighters were to receive a 15-year prison sentence in The Hague.” These conversation illuminate nuances that seem to be formulated upon personal beliefs regarding human intent. The theory of Ultima Ratio is the idea that “criminal law should be the last resort only.” Before the implementation of ICL there should be impunity and state sovereignty, which of course implies that the state itself is legitimate. Other methods of accountability like Truth Telling in South Africa and restorative justice are suggested mechanisms of dealing with mass atrocities before the implementation of ICL.

Law, including ICL, is based on the inherent belief that the state exists and has the power to dictate the morals, values, and actions of individuals. These morals become so ingrained in the mentality of the individual that the individual begins to self-govern. ICL is a challenge to the framework of criminal law, as the individual, whose moral guidelines are apparently corrupt, is replaced by the state itself. State actors, are theoretically supposed to be held accountable rather that the individuals who belong the state. Based on the ideas presented by Tallgren, one can infer that the framework of ICL is in dire need of reformation. Through the implementation of restorative justice and the ultima ratio theory, there is hope that the perceptions of criminality may someday be reformed so that the transfer of panoptic powers may cease.

1 Immi Tallgren, The Sensibility and Sense of International Criminal Law ( Vol. 13 No. 5, EJIL 2002) 561-595.

2 Tallgren (n 1) 561.
3 ibid 567
4 ibid 572

5 ibid 573
6 ibid 565
7 Fred Megret, International Criminal Justice: A Critical Research Agenda, in Christine Schwöbel (ed.), Critical Approaches to International Criminal Law, Routledge (2014) 17-53.
8 Tallgren (n 1) 573.
9 Payam Akhavan, Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities(2001)95 American Journal of International Law 7-31.
10 Megert (n 7).
11 Tallgren (n 1) 585-590.

12 Tallgren (n1) 570.13 Ibid 570.
14 Ibid 569.
15 Ibid 565.

16 Ibid 569.
17 Ibid 591.
18 Ibid 572.
19 Megret (n 7) 22.

20 Megret (n 7) 22.

21 Ibid (n 7) 12.

22 Tallgren (n1) 567.
23 Tallgren (n1) 567.
24 Tallgren (n1) 585.
25 François Du Bois, Antje du Bois-Pedain, J ustice and Reconciliation in Post-Apartheid South Africa (2008) 116.26 Tallgren (n1) 590).

27 Michel Foucault, S urveiller et punir. Naissance de la Prison (1975) 228–264.28 Michel Foucault, Discipline and Punish (1975) 6.