Impunity thick and thin: The International Criminal Court in the search for equality

Abstract

AbstractIn discussions of impunity, such as the one surrounding the International Criminal Court, the concept of impunity itself has remained relatively unattended. Examining the concept more closely reveals that we use it in both thin and thick senses, the thin relating to a concern about the values of punishment and the criminal law and the thick to a broader notion of equality, of which crimes being punished (equally) is one aspect, but not the totality of the issue. Only a thick version of impunity captures all that makes it a problem we care greatly about. According to this conception, what makes impunity a problem is primarily a failure to ensure equality before the law. This can show up in two ways. First, when a crime is not prosecuted or punished because the offender belongs to a group of people who are beyond the reach of the law. Second, when a crime is not prosecuted or punished because the victim belongs to a group of people deemed less important in the eyes the law. Institutions and courts of law end impunity, first and foremost, by restoring the experience of equality against privilege and brute power. This sets an important challenge to the International Criminal Court, because while the Court may serve many important values, its current institutional formation and its political context seem to undermine its capacity to contribute to end impunity in the thicker sense.