In this chapter, we argue that there is a theoretical gap in justifications for the International Criminal Court (ICC) and for other recently constituted international criminal courts, such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). This gap is that, on at least some accounts, these courts have been conceptualized and defended on the basis of principles of ideal justice, but they function in circumstances of grievous injustice. Recognizing this gap sheds important critical light on justifications for what we characterize as “rule of law” and “sovereignty” limits in the structure of international criminal law regimes. These limits, we contend, cast serious doubt on the ability of the ICC to achieve a preventive function as a court of law. Yet, we also argue, prevention is the function that should be paramount in circumstances of serious injustice.

On many views, justice requires that individuals accused of crimes against humanity or other serious international crimes be held accountable, regardless of the state or territory where the crime took place and the location where the accused person may be residing. At the same time, in a morally problematic world where mass violence is a recurring event, there is pressing practical need to address how such violence can be reduced. If the creation and development of an international criminal law regime provides an effective deterrent, then these goals of justice and prevention are mutually supportive.