I'm currently attending a seminar on "Thematic Investigation and Prosecution of International Sex Crimes", organized by the Forum for International Criminal and Humanitarian Law, in Cape Town. This morning's session began with an interesting presentation by Margaret deGuzman entitled "Selecting Sex Crimes for Prosecution at International Courts: the Philosophical Foundations of a Feminist Agenda", which considered whether there is a theoretical basis for prioritizing sexual offences in the prosecution of international crimes. Before proposing norm expression - expressivism - as the most plausible theoretical basis for such prioritization, Margaret discussed other theories of punishment: retribution, deterrence, restoration.
During the course of Margaret's presentation, and the responses from other discussants, the ubiquitous question of whether there is a "theory" of international criminal law emerged once again. Margaret argued that the field rests uncomfortably on "incompletely theorized agreements", the contours of which remain contested. She considered the issue from the perspective of determining what the goals and objectives of ICL are, concluding that norm expressivism best meets these goals. For some discussants however, expressivism begs the question as one still needs to select which "norms" are to be given preference within ICL. Other speakers took a functional approach to this question, suggesting that there is no need for a unifying theory for ICL as it works in practice. Further, questions of theories of punishment (and justice) ultimately return to the foundational debates of the Enlightenment.
This is one of the most interesting and unexplored aspects of ICL. I think ICL does need some unifying theory, no matter how tentative, in order to address another difficult question, namely: what is the source of international tribunals' legitimacy? This is particularly important in an African context, where the legitimacy of the emerging system of international criminal justice is under sustained attack. Without some theoretical foundation, or at the very least a set of agreed upon goals and objectives, it is difficult to coherently and consistently address some of the criticisms raised in respect of the ICC specifically and international criminal law in general.