Another purpose of punishment specific to international criminal law could be that of truth-finding and the acknowledgment of past injustices by the Court through the conviction of the perpetrator.
It is important to first explore the meaning of “truth finding”. The duty of a criminal court is obviously to discover the facts concerning specific cases: did the accused commit the offences for which he or she is being prosecuted? This fact-finding procedure is nevertheless not explicitly cited as a “purpose” of the trial in national contexts.
The question is then whether there is a special relevance to the acknowledgment of injustices in the international context. Alternatively, does “truth-finding” maybe allude to a more comprehensive form of fact-finding, signifying the production of a more detailed record of past events, something akin to a historical record?
There is no evidence to be found in the wording of the preamble that any of the aforementioned truth-finding processes are envisaged as a purpose of punishment before the ICC.
As for the IMTN it has been said that one goal which it aims for is to ascertain the truth.186
The ICTs did not mention such a purpose. Furthermore, in practice the ICTY adhered strictly to the facts concerning the person of the accused.
Many authors do not even refer to a purpose such as “truth-finding“, even those promoting a restorative concept do not always go into this topic. Others do confirm that
185 See Hauser, M. (1998). Die Perspektive der Opfer. Nürnberg, Nürnberger Menschenrechtszentrum: 47- 53. At page 47.
186 Trials of war Criminals Before the Nuernberg Military Tribunals Under Control No. 10, Volume 2, at page 859.
truth-finding and an official acknowledgment of past injustices constitute a specific purpose of punishment in international criminal law187, Donat Cattin even cites the search
for truth, not retribution or punishment as the most significant goal of the ICC proceedings.188
However, concerns have been voiced that courts of law should not be used for “history lessons”, lest proceedings turn into or be seen as show trials.189
The establishment of something akin to a wider historical truth or record is probably far too complex and costly for the ICC to be a realistic option. Providing a historic record could also easily conflict with the rights of the accused because proceedings could become longer than necessary to prove his or her guilt or innocence of the specific crimes in question.
And as Safferling has rightly observed: a public prosecution will contribute to the finding of the truth, although a trial is not a convention of historical experts and the aim of the trial is not to establish the entire picture of the historical events.190 Consequently, sticking
to the facts and the guilt or innocence of the accused in each case is probably the only feasible option for the Court. Furthermore, it is arguable that this is what the Court was designed for and is the only thing a Criminal Court is capable of.191
187 Werle, G. (2005). Principles of International Criminal Law. The Hague, TMC Asser Press. At Page 31;
Dembour, M.-B. and E. Haslam (2004). "Silence Hearings? Victim-Witnesses at War Crimes Trials."
European Journal of International Law 15(1): 151-177. At page 152; Rohde, D. (1997). Die letzten Tage von Srebrenica: was geschah und wie es möglich wurde. Reinbek, Rowohlt Taschenbuch Verlag. At page 405.
188 Donat-Cattin, D. (1999). Art. 68 "Protection of victims and witnesses and their participation in the proceedings". Commentary on the Rome Statute of the International Criminal Court. Observers´Notes Article by Article. O. Triffterer. Baden-Baden, Nomos Verlagsgesellschaft. At page 873.
189 See Buruma, I. (1994). The wages of guilt. Memories of war in Germany and Japan. London, Phoenix Press. At page 181.
190 Safferling, C. J. M. (2004). "Can Criminal Law be the Answer to Massive Human Rights violations?" German Law Journal 5(12): 1469-1488.At page 1482.
191 See similarly Werle, G. (1992). "Der Holocaust als Gegenstand der deutschen Strafjustiz." Neue Juristische Wochenschrift 40: 2529-2535. At page 2529.
Additionally, if the ICC had such an important role in recording history, this could be problematic insofar as it would “produce” history from the view of an institution external to the conflict, which is on top situated far from the setting of the crimes. It is highly questionable whether the recording of “history”, not to mention coming to terms with it can be accomplished externally to the society where it happened. History has a societal dimension that cannot be dealt with solely by judicial instruments.
If with a conviction of an accused the ICC aims to acknowledge injustices in certain cases it should not be forgotten that this can only represent a very small proportion of the whole historical process as only a few persons will be accused and only for the commission of crimes that are prosecuted before the ICC. The ICC will most probably not go beyond this.
Whether the acknowledgement of this “extract of truth” will have a positive effect will depend on the acceptance of the ICC’s decisions and judgements and on the degree to which a national truth-finding or history-building process will accept and adopt this “truth”.
From the wording of the preamble it seems that truth-finding in the described way will not be one of the primary purposes of the ICC. In any case, the Court will not be able to avoid contributing to the shaping of history192