The first [part] will discuss two ways of looking at the court and why the conventional justifications of punishment might not be adequate to justify what the court is doing. The second will examine the issue of the politically unspeakable and argue that the court’s mandate might indeed be the responsibility of making certain ideas and persons politically shameful. The final Part will try to give some justification for the claim that this mandate might give rise to a justification for the court’s existence. On the account I provide here, even if the court could not be justified with reference to the traditional notions of punishment, it might not be wronging those it punishes; those who commit radical evil might have no claim to be free from being used in the constitutional process of political reconstruction. If this argument is correct, then those who are damned by the court may be legitimately used as sites on which the constitutional history of the society in question is rebuilt; they are rendered shameful, and that shame may help build a new social world in which such shameful acts and actors will not recur.
Shame, Memory, and the Unspeakable: The International Criminal Court as Damnatio Memoriae,
San Diego L. Rev.
Available at: https://digital.sandiego.edu/sdlr/vol50/iss4/7