International Criminal Justice

by

Kenneth A. Rodman

• LAST REVIEWED: 10 February 2021
• LAST MODIFIED: 27 October 2016
• DOI: 10.1093/obo/9780199756223-0196

Liberal Legalism

The strongest proponents of international criminal justice implicitly or explicitly ground their arguments in liberalism—i.e., the belief that the globalization of international human rights and humanitarian law, and the empowerment of international courts capable of enforcing it, can enable the international community to promote the collective value of punishing and deterring the most atrocious criminal violence. This strand of liberalism is also strongly influenced by what Shklar 1964 refers to as legalism, which Shklar defines as “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.” From this perspective, moral progress is defined in terms of strengthening institutions of international justice and insulating them from politics. These arguments are implicit in writings of human rights advocates, such as Neier 1998 and Robertson 2012. By contrast, Shklar 1964 is critical of a legalism that is divorced from power, and Forsythe 2007 makes a case for a pragmatic liberalism that acknowledges that there are circumstances where trials are not possible and human rights should be promoted through political and soft, rather than hard, law instruments. Finally, Bass 2000 empirically assesses the impact of liberal legalism on the preference of Western democracies to subject their defeated enemies to trials based on the rule of law.

• Bass, Gary Jonathan. Stay the Hand of Vengeance: The Politics of War Crimes Tribunals. Princeton, NJ: Princeton University Press, 2000.

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  An empirical analysis of the role of liberal legalism in the decisions of Western democracies to seek redress against the leaders of defeated adversaries in a court of law with due process protections. The book covers the first unsuccessful attempts at accountability after World War I, the Nuremberg Trials, and the International Criminal Tribunal for the former Yugoslavia (ICTY).

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• Forsythe, David P. “International Criminal Courts.” In Human Rights in International Relations. 2d ed. By David P. Forsythe, 84–110. New York: Cambridge University Press, 2007.

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  This chapter from a book by a prominent human rights scholar makes a case for a pragmatic liberalism—which he differentiates from judicial romanticism—that acknowledges that postwar trials can only be implemented under certain circumstances, and that there may be prudential and ethically defensible reasons for pursuing political rather than criminal law approaches to advancing human rights.

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• Neier, Aryeh. War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice. New York: Times Books, 1998.

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  A withering critique of the international community’s failures in Bosnia and Rwanda in the 1990s, by a cofounder of Human Rights Watch, who at the time was the president of the Soros Foundation’s Open Society Institute. Written just prior to the negotiation of the Rome Statute, the book makes a passionate call for a universal duty to prosecute those most responsible for international crimes in order to end the culture of impunity that made such atrocities possible.

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• Robertson, Geoffrey. Crimes against Humanity: The Struggle for Global Justice. 4th ed. London: Penguin, 2012.

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  Written by a prominent human rights lawyer, this book provides an overview of the evolution of international human rights and criminal law in an engaging style that makes it accessible to nonspecialists. The primary focus of the book is the clash between state sovereignty and accountability for the worst human rights abuses. While acknowledging political constraints on trials, it nonetheless makes the case in favor of an emerging global system of justice in which political and military leaders implicated in international crimes will increasingly be held accountable.

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• Shklar, Judith N. Legalism: Law, Morals, and Political Trials. Cambridge, MA: Harvard University Press, 1964.

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  A prominent political theorist’s critique of a legalism divorced from politics, which she differentiates from a politically grounded legalism. Shklar argued that the primary influence of Nuremberg was not its contribution to the globalization of law, but its political impact in transforming the Federal Republic of Germany into a rights-respecting democracy by exposing the German public and legal profession to the crimes against humanity that were committed during the Nazi era.

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Realism and Power-Based Theories

Realists are skeptical of the ability of international law to have an independent influence on world politics. Given the absence of a sovereign to enforce the law, they view international relations as an arena of power and interest rather than one of law and justice. As a result, national leaders have a duty to maintain the security of the political communities they represent, not pursue universal standards of justice. The realist critique of international criminal justice can be disaggregated into prescriptive and explanatory scholarship. In terms of the former, realists, such as George Kennan (see Kennan 1951), view advocacy for international justice as part of the moralist-legalist tradition in international relations that can work at cross-purposes with prudently pursuing national security while maintaining international order. Kissinger 2001 and Goldsmith and Krasner 2003 present an updated version of this argument with respect to more recent developments in international criminal justice. In terms of the latter, realism is often used, implicitly or explicitly, by scholars (as in Moghalu 2008 and Rudolph 2001)—including some who do not share its normative position—to explain how international trials are shaped and constrained by the interests of powerful states, on whom they depend to enforce their decisions.

• Goldsmith, Jack, and Stephen D. Krasner. “The Limits of Idealism.” Daedalus 132.1 (2003): 47–63.

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  The authors, a conservative legal scholar and a realist political scientist, criticize the kind of humanitarian idealism that undergirds international prosecution as utopian for overestimating the international consensus on global justice, minimizing its dependence on the self-interest of powerful states, ignoring the potentially harmful consequences of its advocacy, and neglecting the importance of democratic accountability.

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• Kennan, George. American Diplomacy. Chicago: University of Chicago Press, 1951.

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  The classic realist critique of the legalist approach to international relations, which Kennan defines as the attempt to “transpose the Anglo-Saxon concept of international law into the international field,” applying it to governments the same way domestic law is applied to individuals. Most relevant to the issue of international trials is his assertion that the criminalization of the enemy requires a policy of unconditional surrender, which can make war “more enduring, more terrible and more destructive.”

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• Kissinger, Henry. “The Pitfalls of Universal Jurisdiction.” Foreign Affairs 80.4 (2001): 86–96.

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  A realist critique of both universal jurisdiction and the International Criminal Court for its aspiration to empower prosecutors and judges to pursue justice unconstrained by political interests. While liberal legalists would view this as a triumph of international law, Kissinger views it as a threat to a statecraft designed to preserve national security and maintain world order.

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• Moghalu, Kingsley. Global Justice: The Politics of War Crimes Trials. Stanford, CA: Stanford University Press, 2008.

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  The history of war crimes tribunals is analyzed through the perspective of the English School. While Moghalu distances himself from realism, which would not predict a commitment to international accountability, his argument that global justice is a hegemonic enterprise dovetails with realist arguments that the compliance with international law is dependent on the distribution of power between enforcer and violator.

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• Rudolph, Christopher. “Constructing an Atrocities Regime: The Politics of War Crimes Tribunals.” International Organization 55.3 (2001): 655–691.

  DOI: 10.1162/00208180152507588Save Citation »Export Citation » Share Citation »

  Rudolph explains how realist factors, such as the strategic calculations of powerful states, have set limits on international prosecution in the early years of the anti-atrocity regime, focusing on the ICTY, the International Criminal Tribunal for Rwanda (ICTR), and proposals for tribunals in Asia (Cambodia and East Timor), though he acknowledges that may be because the regime is in its infancy.

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Constructivism and Norm-Based Theories

Whereas realism views international legal rules as conveniences that can be set aside whenever it is expedient, constructivist and other norm-based theories view them as having an independent influence on state behavior. They do so through transnational coalitions of civil society groups, international institutions, and some like-minded states, acting as agents of normative change by socializing states into accepting new standards of appropriate behavior. In the field of international criminal justice, this is represented by what Sikkink 2011 refers to as the Justice Cascade—a broad normative shift away from the realpolitik considerations that allowed for impunity and toward a cosmopolitan legal ethic that demands criminal accountability for perpetrators. As a result, the duty to prosecute is not simply viewed as a liberal legalist aspiration, but as part of an evolving system of international justice. The arguments presented by constructivists are implicit in the work of some legal theorists, such as Ruti Teitel (see Teitel 2011), and informs works, such as Lutz and Reiger 2009, on the increasing trend toward prosecuting the former leaders of repressive regimes, Deitelhoff 2009 on the negotiation of an International Criminal Court insulated from great power politics, and Birdsall 2009 on prosecuting international crimes in national courts and international tribunals.

• Birdsall, Andrea. The International Politics of Judicial Intervention: Creating a More Just World Order. New York: Routledge, 2009.

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  A comparative analysis of the influence of constructivist and realist factors in explaining the growth of accountability norms and sovereign resistance to them in rulings on universal jurisdiction by the British Law Lords and the International Court of Justice, and the experiences of the ICTY and the ICC.

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• Deitelhoff, Nicole. “The Discursive Process of Legalization: Charting Islands of Persuasion in the ICC Case.” International Organization 63.1 (2009): 33–65.

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  The author explains why the United States and other powerful states were unsuccessful in pushing for an international criminal court that took direction from the Security Council. She attributes this to the role of ideas and persuasion from a coalition of transnational human rights organizations and like-minded states that opposed an international court that privileged Great Power status.

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• Lutz, Ellen L., and Caitlin Reiger, ed. Prosecuting Heads of State. Cambridge, UK: Cambridge University Press, 2009.

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  The contributors to this edited volume provide a wide-ranging and regionally diverse set of case studies detailing efforts to prosecute former heads of state and government after transitions from civil violence or authoritarianism. While the outcomes of the cases are mixed, the findings as a whole provide support for the constructivist argument regarding the diffusion of the anti-impunity norm.

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• Sikkink, Kathryn. The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics. New York: Norton, 2011.

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  The Justice Cascade is the most prominent constructivist work on international criminal justice. It explains how a transnational justice network of victims, nongovernmental organizations, and states contributed to the progressive growth of the norm of individual criminal accountability for state officials complicit in violations of human rights and the contribution of that norm to reductions in state violence and abuse in those countries that have conducted human rights trials.

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• Teitel, Ruti G. Humanity’s Law. New York: Oxford University Press, 2011.

  DOI: 10.1093/acprof:oso/9780195370911.001.0001Save Citation »Export Citation » Share Citation »

  The author, a legal theorist, provides an argument that dovetails with constructivist accounts by detailing the evolutionary shift in international law away from a state security focus and toward a human security approach, of which international criminal justice is an important part, and how this humanity-based framework has progressively influenced international, regional, and domestic practice.

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Cultural Relativism

Proponents of international criminal justice argue that the evolution of international laws and norms has created a universal duty to prosecute core crimes, which cuts across ideology, religion, and culture. Cultural relativists challenge these claims, arguing that conceptions of justice can only be understood within the context of the history and culture of those societies where they are applied. Most of the universalist-relativist debates have focused on Africa, which has been the primary focus of international criminal justice. Relativist scholarship includes Cobban 2007, which argues that non-retributive post-conflict practices have contributed to better outcomes than has prosecution; Kelsall 2009, which contends the laws of war developed in the West are poorly suited to political violence in the African context; and Clarke 2009, which makes a case for a legal pluralism with greater deference toward traditional dispute resolution practices. Human rights advocates are critical of these practices as inappropriate for those most responsible for the gravest crimes, and some support for that contention is provided by Allen 2006, which questions the cultural authenticity of the advocacy for traditional reconciliation methods in northern Uganda, which Allen views as representing the vested interests of local elites.

• Allen, Tim. Trial Justice: The International Criminal Court and the Lord’s Resistance Army. London: Zed Books, 2006.

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  An anthropological study of the ICC’s investigation of the Lord’s Resistance Army as experienced by its principal victims in northern Uganda. Allen lays out the preference on the part of local civil society groups for traditional non-retributive reconciliation mechanisms, but views their cultural arguments as means of promoting their vested interests and concludes that many of the criticisms of the ICC are misplaced.

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• Clarke, Kamari Maxine. Fictions of Justice: The International Criminal Court and the Challenge of Legal Pluralism in Sub-Saharan Africa. New York: Cambridge University Press, 2009.

  DOI: 10.1017/CBO9780511626869Save Citation »Export Citation » Share Citation »

  A critical view of what the author refers to as the “tribunalization of African justice” by the ICC, which ignores the historical roots of political violence in postcolonial societies. It argues instead for a legal pluralism that acknowledges traditional approaches to justice, as opposed the universalist claims of international criminal law.

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• Cobban, Helena. Amnesty after Atrocity? Healing Nations after Genocide and War Crimes. Boulder, CO: Paradigm, 2007.

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  Cobban contrasts transitional mechanisms in Mozambique, South Africa, and Rwanda, to make the case that the non-retributive approaches to justice used in the first two cases were more consistent with Africa’s communitarian culture than was prosecution, and were more conducive toward post-conflict reconciliation than was the case in Rwanda, where there were significant prosecutions at the international and national level.

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• Kelsall, Tim. Culture under Cross Examination: International Justice and the Special Court for Sierra Leone. New York: Cambridge University Press, 2009.

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  This book is an in-depth analysis of the trials conducted by the Special Court for Sierra Leone that challenges the universalist ambitions of international criminal law. It argues that the theory of command responsibility used to prosecute the leaders of rebel and government-supported militias ignored cultural differences between the conventional wars for which the concept was developed and the civil war in Sierra Leone.

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Critical Theories

Critical approaches to international organization and law encompass a broad range of theories that seek to uncover the structures of domination and dependence that are embedded in global governance. The most prominent critical approaches to international criminal justice come from the Global South, particularly Africa, which has been the primary focus of international prosecution. Mamdani 2009 presents a neocolonial interpretation of the ICC robbing African states of their political autonomy in much the same way international financial institutions undermine their economic sovereignty. Anghie and Chimni 2003 make a similar argument through the lens of Third World Approaches to International Law (TWAIL), which criticizes contemporary international law for marginalizing non-Western interests and values. Other scholarship draws explicitly or implicitly on Marxism or critical legal theory, both of which view law as a means of rationalizing power relationships. Zolo 2009, Graubart 2010, and Branch 2007 present international prosecution as a means by which Western governments and their clients maintain their power vis-à-vis their opponents, while Mitchell 2012 demonstrates why the principles Western governments apply to others are never applied to themselves. The contributors to Schwöbel 2014 draw on critical legal theory, which explores the hidden ideologies and power relationships that underlie international criminal law.

• Anghie, Anthony, and B. S. Chimni. “Third World Approaches to International Law and Individual Responsibility in Internal Conflicts.” Chinese Journal of International Law 2.1 (2003): 77–103.

  DOI: 10.1093/oxfordjournals.cjilaw.a000480Save Citation »Export Citation » Share Citation »

  The authors challenge the purported universality of international criminal justice for failing to take into account the history of colonialism and contemporary power relations between Western and Third World states.

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• Branch, Adam. “Uganda’s Civil War and the Politics of ICC Intervention.” Ethics & International Affairs 21.2 (2007): 179–198.

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  A critical analysis of the ICC’s intervention against the rebel Lord’s Resistance Army in northern Uganda, arguing that it robs local communities of agency in addressing their own problems and accommodates itself to the power of the Museveni regime in Uganda and its patrons in the West.

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• Graubart, Jonathan. “Rendering Global Criminal Law an Instrument of Power: Pragmatic Legalism and Global Tribunals.” Journal of Human Rights 9.4 (2010): 409–426.

  DOI: 10.1080/14754835.2010.522923Save Citation »Export Citation » Share Citation »

  The author argues that by acting pragmatically and adapting prosecution to power realities, international tribunals have promoted a selective justice that has allowed powerful states and local actors to use the court as an instrument against their political opponents.

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• Mamdani, Mahmood. Saviors and Survivors: Darfur, Politics, and the War on Terror. New York: Pantheon, 2009.

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  Embedded within this critique of the Save Darfur Movement and Western humanitarianism is a neocolonial interpretation of the ICC’s involvement in Sudan, and more generally in Africa, for removing the agency of African governments in addressing regional and civil conflicts, and for providing a conduit through which the West imposes standards on Africa it does not apply to itself in order to support its allies and punish its enemies.

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• Mitchell, Neil J. Democracy’s Blameless Leaders from Dresden to Abu Ghraib: How Leaders Evade Accountability for Abuse, Atrocity, and Killing. New York: New York University Press, 2012.

  DOI: 10.18574/nyu/9780814761441.001.0001Save Citation »Export Citation » Share Citation »

  Through six detailed case studies beginning with the British massacre of peaceful Indian nationalists at Amritsar in 1919 through the use of torture by the US military in Abu Ghraib, the author explains why the liberal ideal of accountability is never applied to Western democracies.

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• Schwöbel, Christine, ed. Critical Approaches to International Criminal Law. New York: Routledge, 2014.

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  A collection of essays by legal scholars using critical legal theory to explore the selective biases of international criminal law and uncover the power relationships embedded in its theory and practice.

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• Zolo, Danilo. Victor’s Justice: From Nuremberg to Baghdad. London: Verso, 2009.

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  Postwar trials and the universal liberal ideas that underlie them are characterized as means through which the United States and its allies have legitimized and maintained an unequal international order.

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The Relationship between Politics and Law

Much of the scholarship on international criminal justice focuses on the relationship between politics and law. The most idealistic construction of international criminal justice—presented in Bassiouni 1997—aspires to insulate law from politics and warns against the politicization of justice. By contrast, Simpson 2007, Moyn 2013, Leebaw 2011, and Mégret 2002 argue that post-conflict justice is inextricably intertwined with politics, and Robinson 2015 consequently argues that whatever the prosecutor decides, the ICC’s decisions are inevitably going be viewed as political by those actors with a stake in the outcome. Other scholarship focuses on efforts by states to use international law as a political instrument. Maguire 2000 develops the concept of strategic legalism to examine the political motivation behind US support for and limitations on trials from the American Civil War through Nuremberg. The influence of powerful or wealthy states on a tribunal’s agenda is explored by Kendall 2011, on the role of donor states, and Aloisi 2013, on the role of the UN Security Council.

• Aloisi, Rosa. “A Tale of Two Institutions: The United Nations Security Council and the International Criminal Court.” International Criminal Law Review 13.1 (2013): 147–168.

  DOI: 10.1163/15718123-01301004Save Citation »Export Citation » Share Citation »

  Argues that the UN Security Council’s power to refer or defer ICC investigations has provided a conduit for the politicization of justice.

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• Bassiouni, M. C. “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court.” Harvard Human Rights Journal 10 (1997): 11–62.

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  An argument from one of the pioneers of international criminal justice, using the historical development of international trials to make the case that the duty to prosecute international crimes needs to be insulated from traditional considerations of national interest: “Compromise is the art of politics, not of justice.”

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• Kendall, Sara. “Donors’ Justice: Recasting International Criminal Accountability.” Leiden Journal of International Law 24.3 (2011): 585–606.

  DOI: 10.1017/S0922156511000264Save Citation »Export Citation » Share Citation »

  The author uses the experience of the Special Court for Sierra Leone to explore how a tribunal’s dependence on sovereign donors can set limits on its mandate.

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• Leebaw, Bronwen. Judging State-Sponsored Violence, Imagining Political Change. New York: Cambridge University Press, 2011.

  DOI: 10.1017/CBO9780511976490Save Citation »Export Citation » Share Citation »

  The author contrasts Nuremberg with South Africa’s Truth and Reconciliation Commission through the lens of both the criminal justice and restorative justice paradigms. Drawing on the Shklar 1964 (cited under Liberal Legalism), both approaches are criticized for attempting to depoliticize violence and remove it from its larger historical and political context.

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• Maguire, Peter. Law and War: An American Story. New York: Columbia University Press, 2000.

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  The author examines the US approach to war crimes trials from the 19th century through Nuremberg and Tokyo to develop the concept of strategic legalism, which he defines as “the use of law or legal arguments to further larger policy objectives, irrespective of laws and facts.” The more idealistic objectives at Nuremberg are differentiated from more unprincipled realpolitik ones, such as the Cold War–motivated decisions to abandon the war crimes programs in Germany and Japan.

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• Mégret, Frédéric. “The Politics of International Criminal Justice.” European Journal of International Law 13.5 (2002): 1261–1284.

  DOI: 10.1093/ejil/13.5.1261Save Citation »Export Citation » Share Citation »

  A review essay that explains how a mix of judicial idealism and realpolitik has influenced both the creation of war crimes tribunals and their effectiveness, focusing primarily on the work of the ICTY.

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• Moyn, Samuel. “Judith Shklar versus the International Criminal Court.” Humanity 4.3 (2013): 473–500.

  DOI: 10.1353/hum.2013.0026Save Citation »Export Citation » Share Citation »

  A human rights scholar’s application of Shklar’s arguments about Nuremberg (see Shklar 1964, cited under Liberal Legalism) to many of the contemporary problems facing the ICC today, with a concluding focus on the difference in political context between post–World War II Germany and the African states where the court has conducted its first investigations.

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• Robinson, Darryl. “Inescapable Dyads: Why the ICC Cannot Win.” Leiden Journal of International Law 28.2 (2015): 323–347.

  DOI: 10.1017/S0922156515000102Save Citation »Export Citation » Share Citation »

  The ICC prosecutor’s decisions regarding initiating formal investigations and selecting cases will inevitably be subjected to criticism—for example, either as being too deferential to power realities or being too oblivious to them. As a result, the author advocates a framework for evaluating these arguments so the court can choose between a range of “imperfect and assailable options.”

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• Simpson, Gerry. Law, War and Crime: War Crimes Trials and the Reinvention of International Law. Cambridge, UK: Polity, 2007.

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  A wide-ranging analysis of the tensions between the more liberal and idealistic objectives of war crimes trials and the broader political purposes those trials are designed to serve.

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Enforcement and Compliance

Unlike domestic criminal law, where a court’s orders are routinely enforced by apolitical agents of the state, international prosecutors need to secure the voluntary cooperation of sovereign states. In theory, compliance should be a binding legal obligation, but states often resist, and when they do the court needs the assistance of the UN Security Council or third-party states to enforce compliance. Stover, et al. 2016 provides a comprehensive account of efforts to apprehend suspected war criminals, from Nuremberg through the ICC. Peskin 2008 and Bosco 2014 document how international prosecutors have construed their decision making strategically to secure cooperation, as well as the strategies that recalcitrant states use to resist or circumscribe criminal justice. Hagan 2003 and Hawkins and Losee 2014 demonstrate that international prosecutors can use the moral authority of their office to secure compliance either by public shaming or forming alliances with subnational actors to mobilize normative pressure on states to enforce compliance. By contrast, third parties are unlikely to use pressure against recalcitrant states when they see important national interests at stake, as Brown and Raddatz 2014 found in the ICC’s Kenyan prosecutions. Nouwen and Werner 2010 and Clark 2008 explain how the ICC prosecutor’s dependence on sovereign cooperation effectively creates an unspoken alliance with particular states that can work at cross-purposes with impartial justice, and Danner 2003 establishes a set of guidelines to minimize that risk.

• Bosco, David. Rough Justice: The International Criminal Court in a World of Power Politics. Oxford: Oxford University Press, 2014.

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  Bosco provides a thorough account of the ICC’s first decade, in which he establishes a typology of strategies that states and prosecutors can adopt to influence each other. He concludes that the ICC’s first chief prosecutor, Luis Moreno Ocampo, acted pragmatically by initiating investigations only where state support was likely to make them successful, and strategically in building relationships with states by trying to persuade them that the court’s mandate supports their interests.

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• Brown, Stephen, and Rosalind Raddatz. “Dire Consequences or Empty Threats: Western Pressure for Peace, Justice and Democracy in Kenya.” Journal of East African Studies 8.1 (2014): 43–62.

  DOI: 10.1080/17531055.2013.869008Save Citation »Export Citation » Share Citation »

  An analysis of the failure of the UN and Western governments to put pressure on Kenya in response to its obstruction of the ICC investigations of Uhuru Kenyatta and William Ruto after they won the 2013 elections, primarily as a means of insulating counterterrorism and economic cooperation with Kenya from the international legal process.

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• Clark, Phil. “Law, Politics and Pragmatism: The ICC and Case Selection in Uganda and the Democratic Republic of Congo.” In Courting Conflict? Justice, Peace and the ICC in Africa. Edited by Nicholas Waddell and Phil Clark, 37–46. London: Royal African Society, 2008.

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  A critical analysis of the ICC prosecutor’s strategy of establishing cooperative relationships with state parties in his first two investigations. This attempt to secure cooperation led to a self-serving rather than a principled form of pragmatism in which the court’s agenda was co-opted by rights-abusive governments.

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• Danner, Allison Marston. “Enhancing the Legitimacy and Accountability of Prosecutorial Discretion at the International Criminal Court.” American Journal of International Law 97.3 (2003): 510–552.

  DOI: 10.2307/3109838Save Citation »Export Citation » Share Citation »

  An examination of how the ICC prosecutor’s discretion is subject not only to the legal rules of the Rome Statute, but also to a kind of “pragmatic accountability” (i.e., its relationship with those actors on whom it relies to successfully investigate and prosecute crimes). The author argues that prosecutors should maintain their legitimacy in these circumstances through transparency and principled guidelines that would inform their decisions.

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• Hagan, John. Justice in the Balkans: Prosecuting War Crimes in the Hague Tribunal. Chicago: University of Chicago Press, 2003.

  DOI: 10.7208/chicago/9780226312309.001.0001Save Citation »Export Citation » Share Citation »

  Hagan, a sociologist, examines the use of public diplomacy by the ICTY’s first two chief prosecutors, Richard Goldstone and Louise Arbour, in using the moral authority of their office to engage in an “esteem competition” with NATO member states and the UN Security Council to place social pressure on them to enforce the tribunal’s mandate.

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• Hawkins, Darren, and Chad Losee. “States and International Courts: The Politics of Prosecution in Sierra Leone.” Journal of Human Rights 13.1 (2014): 48–68.

  DOI: 10.1080/14754835.2013.824273Save Citation »Export Citation » Share Citation »

  A study of how David Crane, the first chief prosecutor for the Special Court for Sierra Leone, used alliances with the US Congress to secure stronger US government support for its indictment of former Liberian president Charles Taylor, despite initial reservations.

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• Nouwen, Sarah M. H., and Wouter G. Werner. “Doing Justice to the Political: The International Criminal Court in Uganda and Sudan.” European Journal of International Law 21.4 (2010): 941–965.

  DOI: 10.1093/ejil/chq064Save Citation »Export Citation » Share Citation »

  The authors use the Ugandan and Darfur investigations to demonstrate that the ICC’s dependence on state support tacitly aligns it either with the government against the rebels, as in the former case, or the international community against the government, as in the latter case. Any normative assessment of this inevitable feature of international prosecution requires frank acknowledgment of this relationship and an assessment of its political character.

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• Peskin, Victor. International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation. New York: Cambridge University Press, 2008.

  DOI: 10.1017/CBO9780511790584Save Citation »Export Citation » Share Citation »

  Peskin examines the strategies of the chief prosecutors of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to secure state cooperation through a mix of bargaining, concessions, and inducements. The emphasis is on what he refers to as “virtual trials” or “trials of cooperation,” in which prosecutors use publicity to secure the compliance of recalcitrant states or third parties who can support the court as “surrogate enforcers.”

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• Stover, Eric, Victor Peskin, and Alexa Koenig. Hiding in Plain Sight: The Pursuit of War Criminals from Nuremberg through the War on Terror. Oakland: University of California Press, 2016.

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  A thorough and meticulously researched account of efforts by states and international courts to overcome political constraints in efforts to gain custody over suspected war criminals, covering Nuremberg, the UN-created tribunals, the ICC, and the war on terror.

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Peace versus Justice

Among the most contested issues in the politics of international criminal justice is the causal relationship between prosecution and peaceful transitions from war or dictatorship. The strongest supporters of postwar trials—Bassiouni 2004 and Darehshori 2009—contend that prosecuting those who bear the greatest responsibility for war crimes and human rights abuses is indispensable to the consolidation of those transitions. Pragmatic approaches to post-conflict justice—Huntington 1991, Snyder and Vinjamuri 2003–2004—counter that insisting on prosecution may work at cross-purposes with the kinds of bargaining relationships necessary to negotiate and maintain those transitions. More optimistic views are provided by large-N studies such as Sikkink and Walling 2007, which found that post-conflict trials contribute to better human rights outcomes; Simmons and Danner 2010, which correlated ICC membership to commitments to peace negotiations; and a case study analysis by Akhavan 2009, which argues that ICC involvement can alter the incentives for state actors toward reducing criminal violence. For contrasting views of how this debate played out in the relationship between the ICTY and the Bosnian peace process, contrast Anonymous 1996 with Goldstone 1998.

• Akhavan, Payam. “Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism.” Human Rights Quarterly 31.3 (2009): 624–654.

  DOI: 10.1353/hrq.0.0096Save Citation »Export Citation » Share Citation »

  While distancing himself from an overly optimistic equation of justice and peace, the author challenges realism’s more pessimistic view through three case studies–Côte d’Ivoire, Uganda, and Darfur—to show how ICC intervention has helped shape the incentives of the parties to refrain from human rights abuses while stigmatizing and politically isolating those perpetrators identified by the court.

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• Anonymous. “Human Rights in Peace Negotiations.” Human Rights Quarterly 18.2 (1996): 249–258.

  DOI: 10.1353/hrq.1996.0014Save Citation »Export Citation » Share Citation »

  A critique by an anonymous UN official of how insistence upon criminal and other forms of justice in the Bosnian peace process impeded the negotiation of a political settlement to end the war: “The quest for justice for yesterday’s victims of atrocities should not be pursued in such a manner that it makes today’s living the dead of tomorrow.”

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• Bassiouni, M. Cherif. “Justice and Peace: The Importance of Choosing Accountability over Realpolitik.” Case Western Reserve Law Journal 35.2 (2004): 191–204.

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  The author, one of the earliest scholarly proponents of international tribunals for human rights crimes, argues against sacrificing justice and accountability in peace negotiations.

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• Darehshori, Sara. Selling Justice Short: Why Accountability Matters for Peace. New York: Human Rights Watch, 2009.

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  This study from one of the strongest NGO supporters of international trials argues that prosecution contributes to peace processes by marginalizing criminal actors and strengthening the rule of law, whereas amnesties set the stage for renewed violence by perpetuating a culture of impunity.

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• Goldstone, Richard J. “Bringing War Criminals to Justice in an Ongoing War.” In Hard Choices: Moral Dilemmas in Humanitarian Intervention. Edited by Jonathan Moore, 195–210. Lanham, MD: Rowman & Littlefield, 1998.

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  The ICTY’s first chief prosecutor argues that far from impeding peace negotiations, the tribunal’s indictments contributed to them by excluding criminal spoilers from the Dayton peace negotiations and from playing any formal political role in postwar Bosnia.

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• Huntington, Samuel. The Third Wave: Democratization in the Late Twentieth Century. Norman: University of Oklahoma Press, 1991.

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  Although the focus is on national trials, Huntington’s argument prefigures pragmatic views of international criminal justice in arguing that the prospects for prosecution are impossible in elite-driven or negotiated transitions, since they depend on the cooperation of members of the old rights-abusive regime. Only in ruptured transitions when dictatorships have collapsed is prosecution possible, since officials of the old regime no longer have the power to prevent it.

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• Sikkink, Kathryn, and Carrie Booth Walling. “The Impact of Human Rights Trials in Latin America.” Journal of Peace Research 44.4 (2007): 427–445.

  DOI: 10.1177/0022343307078953Save Citation »Export Citation » Share Citation »

  The authors use a large-N study to challenge the pragmatic approach by demonstrating that trials after transitions to democracy in Latin American have not produced the predicted backlash against democratization, and have correlated with improvements in human rights and political stability.

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• Simmons, Beth A., and Allison Danner. “Credible Commitments and the International Criminal Court.” International Organization 64.2 (2010): 225–256.

  DOI: 10.1017/S0020818310000044Save Citation »Export Citation » Share Citation »

  A large-N study that seeks to explain the puzzle of why low rule-of-law states that experience civil violence join the ICC when that makes their security forces vulnerable to prosecution. Their conclusion is that such states are signaling to their adversaries their commitment to ratchet down violence by delegating the authority to prosecute war crimes to an institution beyond their control. As a result, ICC accession should correlate with reduced civil violence and progress in peace processes.

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• Snyder, Jack, and Leslie Vinjamuri. “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” International Security 28.3 (Winter 2003–2004): 5–44.

  DOI: 10.1162/016228803773100066Save Citation »Export Citation » Share Citation »

  The authors lay out a pragmatic approach to prosecution after transitions from war or dictatorship. Using comparative case studies, they argue that establishing the rule of law in transitional societies depends upon the consolidation of domestic political institutions, which may require expedient bargaining with, rather than the prosecution of, those actors complicit in political violence when they are strong enough to disrupt the transition.

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Reconciliation

There is considerable interdisciplinary scholarship on one of the mechanisms identified by anti-impunity advocates to impute a causal relationship between prosecution and peace—i.e., the purported contribution of trials to societal reconciliation. Osiel 1997 argues that trials can promote this by creating an accurate historical record of the past. Goldstone 1996 emphasizes the contribution of trials to individualizing guilt in criminal leaders rather than collectivizing it in entire communities, and in providing psychological healing for those affected by violent conflicts. This narrative is questioned in Stover and Weinstein 2004, which found the work of the tribunals to be distant from post-conflict communities, and Mendeloff 2004, which raises questions about whether confronting the past actually contributes to healing and reconciliation. Conflicting analyses as to whether the ICTY has contributed to changes in public attitudes conducive to reconciliation can be found in Clark 2014 and Meernik and Guerrero 2014.

• Clark, Janine Natalya. International Trials and Reconciliation: Assessing the Impact of the International Criminal Tribunal for the Former Yugoslavia. New York: Routledge, 2014.

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  Through fieldwork and interviews in the postwar Bosnia, Croatia, and Kosovo, the author empirically tested the hypothesis that the ICTY promoted inter-ethnic reconciliation. She found that the tribunal’s record was interpreted through the partisan lenses of the each of the communities, which portray themselves as the principal victims of ethnic violence, thereby reducing its ability to bridge societal divisions.

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• Goldstone, Richard J. “Justice as a Tool for Peace-Making: Truth Commissions and International Criminal Tribunals.” New York University Journal of International Law and Politics 28.3 (1996): 485–503.

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  The former ICTY prosecutor argues that trials can produce peace as well as justice by exposing the truth, providing psychological healing, and individualizing guilt, so that victimized groups do not collectivize it against entire communities.

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• Meernik, James, and Jose Raul Guerrero. “Can International Criminal Justice Advance Ethnic Reconciliation? The ICTY and Ethnic Relations in Bosnia-Herzogovina.” Journal of Southeast European and Black Sea Studies 14.3 (2014): 383–407.

  DOI: 10.1080/14683857.2014.924675Save Citation »Export Citation » Share Citation »

  Drawing on survey research data, the authors find support for a causal relationship between the activities of the ICTY and public attitudes conducive to reconciliation.

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• Mendeloff, David. “Truth‐Seeking, Truth‐Telling, and Postconflict Peacebuilding: Curb the Enthusiasm?” International Studies Review 6.3 (2004): 355–380.

  DOI: 10.1111/j.1521-9488.2004.00421.xSave Citation »Export Citation » Share Citation »

  The author critiques the argument that truth-telling through international trials or truth commissions contributes to post-conflict peacebuilding, and suggests that amnesties and mechanisms designed to forget the past may be more conducive to peace.

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• Osiel, Mark. Mass Atrocity, Collective Memory, and the Law. New Brunswick, NJ: Transaction, 1997.

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  An international legal scholar’s case for prosecution as a “liberal show trial” in which post-conflict reconciliation is assisted through creating shared understandings of the brutality of the past regime and through subjecting its former leaders to the rule of law.

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• Stover, Eric, and Harvey M. Weinstein. My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity. Cambridge, UK: Cambridge University Press, 2004.

  DOI: 10.1017/CBO9780511720352Save Citation »Export Citation » Share Citation »

  An edited volume of scholarship on how international justice mechanisms have been experienced by communities emerging from religious or ethnic violence, primarily in the Balkans and Rwanda. The contributions, for the most part, found that survivor communities felt alienated from the work of the tribunals, raising questions about their contribution to societal reconciliation.

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Deterrence

The central purpose of domestic criminal law is to incapacitate the offender through arrest, trial, and incarceration, and to deter others from committing comparable crimes through the example set by prosecution. International criminal law aspires to achieve the same objectives with respect to core international crimes—see Akhavan 2001 and Klabbers 2001. The deterrent impact of international prosecution has been supported by some large-N studies, such as Kim and Sikkink 2010, which found empirical support for the deterrent effect of trials in transitional societies, and Jo and Simmons 2016, which found conditional support for the ICC’s impact in reducing the intentional killing of civilians. Other scholarship—Wippman 1999, Drumbl 2005, Ku and Nzelibe 2006, Rodman 2008, Vinjamuri 2010 and Cronin-Furman 2013—raises questions about the domestic criminal law analogy given the difference between crime in an otherwise peaceful society and international crimes committed during ongoing hostilities.

• Akhavan, Payam. “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?” American Journal of International Law 95.1 (2001): 7–31.

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  The author explains why the ICTY, and international prosecution more generally, can provide both specific deterrence of wartime criminality in the countries where it is applied, and general deterrence by setting an example of how the international community will respond to atrocity crimes beyond the country in question.

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• Cronin-Furman, Kate. “Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity.” International Journal of Transitional Justice 7.3 (2013): 434–454.

  DOI: 10.1093/ijtj/ijt016Save Citation »Export Citation » Share Citation »

  The author provides an analysis of the conditions under which those contemplating criminal violence are likely to be deterred by the threat of international prosecution, and contends that the ICC’s current agenda of investigating those with the greatest responsibility for the most serious crimes focuses on those least susceptible to deterrence.

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• Drumbl, Mark A. “Collective Violence and Individual Punishment: The Criminality of Mass Atrocity.” Northwestern University Law Review 99 (2005): 539–610.

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  The domestic criminal law analogy used by advocates of international trials to support their deterrent impact is challenged, primarily due to the collective, as opposed to individual, character of most war crimes.

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• Jo, Hyeran, and Beth A. Simmons. “Can the International Criminal Court Deter Atrocity?.” International Organization 70.3 (2016): 443–475.

  DOI: 10.1017/S0020818316000114Save Citation »Export Citation » Share Citation »

  A large-N study that finds conditional support for the ICC’s deterrent impact in reducing the intentional killing of civilians during civil violence in Rome Statute State parties. Prosecutorial deterrence is correlated to legal reforms in accountability spurred by ratification and to the ICC’s clear intent to initiate an investigation. Social deterrence is correlated to the ability of human rights and civil society organizations to mobilize against abusive behavior, thereby raising the legitimacy costs of criminal violence.

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• Kim, Hunjoon, and Kathryn Sikkink. “Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries.” International Studies Quarterly 54.4 (2010): 939–963.

  DOI: 10.1111/j.1468-2478.2010.00621.xSave Citation »Export Citation » Share Citation »

  This study provides statistical support for the deterrent role of trials in transitional societies through its finding that those states that conduct prosecutions are less repressive than those that do not.

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• Klabbers, Jan. “Just Revenge? The Deterrence Argument in International Criminal Law.” Finnish Yearbook of International Law 12 (2001): 249–267.

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  The author asserts that one of the primary reasons behind the creation of the ICC was to ensure punishment of core international crimes, which in turn provides general deterrence.

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• Ku, Julian, and Jide Nzelibe. “Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?” Washington University Law Review 84 (2006): 777–833.

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  Using rational choice models, the authors challenge the deterrent influence of international tribunals, since they are likely to impose less severe punishments on perpetrators than would be meted at home if they lost power. Prosecution can also exacerbate violence when it is directed against perpetrators whose agreement to stop fighting is necessary for peace settlements or when local political actors view it as a means of outsourcing justice rather than enacting rule of law reforms.

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• Rodman, Kenneth A. “Darfur and the Limits of Legal Deterrence.” Human Rights Quarterly 30.3 (2008): 529–560.

  DOI: 10.1353/hrq.0.0012Save Citation »Export Citation » Share Citation »

  The author contrasts the Bosnia and Darfur cases to argue that ending atrocity in an ongoing war requires not deterrence through an international tribunal, but compellence through some kind of external intervention, and that international criminal justice can only play a role as a complement to coercive political strategies designed to weaken a criminal spoiler’s hold on power.

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• Vinjamuri, Leslie. “Deterrence, Democracy, and the Pursuit of International Justice.” Ethics & International Affairs 24.2 (2010): 191–211.

  DOI: 10.1111/j.1747-7093.2010.00256.xSave Citation »Export Citation » Share Citation »

  A critique of the deterrence rationale for introducing international criminal justice during ongoing political violence and an exposition of its potentially counterproductive consequences for mediating an end to violent conflicts.

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• Wippman, David. “Atrocities, Deterrence, and the Limits of International Justice.” Fordham International Law Journal 23 (1999): 473–488.

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  A skeptical view of the ability of international prosecution to achieve either specific or general deterrence, using historical examples as well as the experience of the ICTY.

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Victor’s Justice

One of the oldest debates about war crimes trials, going back to Nuremberg and Tokyo, is whether they are exercises in victor’s justice, in which the winners judge the losers. Legalist critics argue that this calls into question the legitimacy of such trials by transforming them into instruments of selective justice, though Bass 2002 presents a qualified defense of this when practiced by liberal states against their nondemocratic adversaries. In theory, moving from trials in which the victors judge the vanquished to those conducted in international tribunals should lead to more even-handed justice. However, Peskin 2005 explains the difficulties international prosecutors have confronted in achieving this in the UN-created ad hoc tribunals. Reydams 2005 and Corey-Boulet 2012 demonstrate how those difficulties have constrained the ICTR and ICC from prosecuting the winners as well as the losers in Rwanda and Côte d’Ivoire. By contrast, Meernik 2003 found that the judgments of the ICTY have consistently reflected apolitical legal considerations rather than the identity of the accused.

• Bass, Gary Jonathan. “Victor’s Justice, Selfish Justice.” Social Research 69.4 (2002): 1035–1044.

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  Bass provides a qualified defense of “victor’s justice” as practiced by liberal states, as opposed to the “show trials” deployed by authoritarian regimes against their enemies.

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• Corey-Boulet, Robbie. “Ivory Coast: Victor’s Justice.” World Policy Journal 29.3 (2012): 68–79.

  DOI: 10.1177/0740277512461315Save Citation »Export Citation » Share Citation »

  A critique of the ICC’s investigation in Côte d’Ivoire for prosecuting only cases associated with former president Laurent Gbagbo, who was ousted following the post-election violence in 2010–2011. There were no cases against Alassane Ouattara’s victorious side, despite allegations of serious war crimes and post-conflict domestic trials that have focused only on Gbagbo’s allies.

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• Meernik, James. “Victor’s Justice or the Law? Judging and Punishing at the International Criminal Tribunal for the Former Yugoslavia.” Journal of Conflict Resolution 47.2 (2003): 140–162.

  DOI: 10.1177/0022002702251024Save Citation »Export Citation » Share Citation »

  A large-N study that challenges “victor’s justice” charges against the judgments of the ICTY by correlating the verdicts and the severest sentences to the gravity of the crimes and the level of responsibility.

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• Peskin, Victor. “Beyond Victor’s Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda.” Journal of Human Rights 4.2 (2005): 213–231.

  DOI: 10.1080/14754830590952152Save Citation »Export Citation » Share Citation »

  A comparative analysis of efforts by international tribunals to prosecute both the winners and the losers of an armed conflict, explaining their success in Croatia and their failure in Rwanda.

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• Reydams, Luc. “The ICTR Tens Years On: Back to the Nuremberg Paradigm.” Journal of International Criminal Justice 3.4 (2005): 977–988.

  DOI: 10.1093/jicj/mqi067Save Citation »Export Citation » Share Citation »

  Even though the ICTR is formally an independent international tribunal, it has become an instrument of one-sided prosecution, given the Rwandan government’s resistance to accountability for the victorious Rwandan Patriotic Army and the strategic relationships Rwanda has developed with the UN and Western governments.

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The Ethics of International Criminal Justice and the Duty to Prosecute

To the strongest supporters of international criminal justice—Orentlicher 1991, Sadat 2005—there is a duty to prosecute core international crimes as a result of the evolution of international law and the human right norms that undergird it. Other scholars—Bass 2004—counter that that those duties need to be weighed and balanced against other ethical imperatives. Licklider 2008 applies this argument to peace negotiations, while Niño 1991 and Zalaquett 1991 apply it to consolidating democracy after transitions to dictatorship when members of the old regime retain considerable power.

• Bass, Gary J. “Jus Post Bellum.” Philosophy & Public Affairs 32.4 (2004): 384–412.

  DOI: 10.1111/j.1088-4963.2004.00019.xSave Citation »Export Citation » Share Citation »

  Drawing on the just war tradition, the author makes a case for weighing and balancing the ethical duty to prosecute international crimes against peace, stability, democracy, and distributive justice.

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• Licklider, Roy. “Ethical Advice: Conflict Management vs. Human Rights in Ending Civil Wars.” Journal of Human Rights 7.4 (2008): 376–387.

  DOI: 10.1080/14754830802476886Save Citation »Export Citation » Share Citation »

  The ethics of a duty to prosecute is challenged through conflict resolution theory, which requires all parties, even those complicit in international crimes, to be part of the political settlement. Rejecting this approach in favor of an uncompromising demand for prosecution is ethically problematical, since it implies the prolongation of civil violence.

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• Niño, Carlos S. “The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina.” Yale Law Review 100.8 (1991): 2619–2640.

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  The author is an Argentine human rights lawyer who advised the government on the trials of leaders of the former dictatorship, which were aborted as a result of a military revolt. In response to Orentlicher 1991, he argued against a binding duty to prosecute when confronted with the risk of violent backlash and argued that the duty to safeguard the democratic transition and prevent future violations was more fundamental than that of putting perpetrators on trial.

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• Orentlicher, Diane F. “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime.” Yale Law Review 100.8 (1991): 2537–2615.

  DOI: 10.2307/796903Save Citation »Export Citation » Share Citation »

  In one of the most influential arguments for the “duty to prosecute,” the author argues that there is a binding obligation under international law to at least conduct exemplary prosecutions of the leaders of a prior regime most responsible for international crimes. If states default on that duty through formal or de facto amnesties, then that duty falls to the international community through international courts or national courts exercising universal jurisdiction.

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• Sadat, Leila Nadya. “Exile, Amnesty and International Law.” Notre Dame Law Review 81.3 (2005): 955–1036.

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  A legal, ethical, and practical argument against accepting amnesty or third-party exile for those complicit in violation of jus cogens rules (i.e., fundamental and overriding principles of international law from which one cannot derogate) as part of peace processes.

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• Zalaquett, José. “Balancing Ethical Imperatives and Political Constraints: the Dilemma of New Democracies Confronting Past Human Rights Violations.” Hastings Law Journal 43 (1991): 1425–1438.

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  A former member of Chile’s National Truth Commission explains the ethical problems of advocating Nuremberg-style trials in a democratic transition in which members of the former dictatorship wield significant power, and presents the South African model of exchanging amnesty for truth as an ethically defensible alternative.

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The Interests of Victims

Another area of contestation is whether prosecution serves the interests of victims. Under international human rights law, victims of human rights abuses have a right to redress. For the core crimes covered by international criminal law, the strongest anti-impunity advocates argue that nothing less than prosecution would meet this obligation. Some scholarship questions this narrative, arguing that it responds to an abstract notion of victimhood—see Kendall and Nouwen 2013—rather than the experiences of actual victims, who may place a higher priority on truth, reparations, or restitution—goals that in some circumstances might work at cross-purposes with prosecutorial justice. Minow 1998 explores a wide range of approaches to victims of human rights abuses and how they have balanced a right to redress and broad social goals. Askin 1999 explains how the UN-created ad hoc tribunals established important precedents for the victims of sexual violence, though Neuffer 2001 raises questions about the difference between justice as defined by international tribunals and justice as defined by actual rape survivors. Ferstman 2002 lays out the ways in which the International Criminal Court is more victim-centered than previous international tribunals. Nonetheless, Moffett 2014 notes that for this distinction to be meaningful, it requires complementary commitments from the international community. Glasius 2009 and Ferstman 2012 found that the ICC prosecutor did not address the perspectives of victims in his case selection in the court’s first four investigations and in the narrow charges brought against its first defendant in eastern Congo.

• Askin, Kelly D. “Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals: Current Status.” American Journal of International Law 93.1 (1999): 97–123.

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  An exposition and analysis of the rulings by the ICTY and ICTR regarding sexual violence as an instrument of genocide, torture, and crimes against humanity, and as a precedent for taking gender crimes more seriously than in the past in the enforcement of the laws of armed conflict.

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• Ferstman, Carla. “The Reparation Regime of the International Criminal Court: Practical Considerations.” Leiden Journal of International Law 15.3 (2002): 667–686.

  DOI: 10.1017/S0922156502000304Save Citation »Export Citation » Share Citation »

  An explanation of how the Rome Statute designed an international court that is more victim-centered than previous tribunals by allowing victims to participate directly in the court’s proceedings and receive reparations from a victims’ compensation fund.

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• Ferstman, Carla. “Limited Charges and Limited Judgments by the International Criminal Court—Who Bears the Greatest Responsibility?” International Journal of Human Rights 16.5 (2012): 796–813.

  DOI: 10.1080/13642987.2012.685326Save Citation »Export Citation » Share Citation »

  A critique of the ICC prosecutor’s decision to limit the charges in the court’s first trial against the Congolese militia leader Thomas Lubanga Dyilo to the conscription of child soldiers. While the decision was designed to expedite the proceedings, this was done at the expense of providing redress for a broader range of victims.

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• Glasius, Marlies. “What Is Global Justice and Who Decides?: Civil Society and Victim Responses to the International Criminal Court’s First Investigations.” Human Rights Quarterly 31.2 (2009): 496–520.

  DOI: 10.1353/hrq.0.0075Save Citation »Export Citation » Share Citation »

  A survey of the views of civil society groups in the four countries where the ICC conducted its first investigations as to whether the court’s activities were perceived by victimized communities as acting in their interests. The article concludes with suggestions on how to overcome the widespread perception that the prosecutor serves governments rather than civil society and victims.

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• Kendall, Sara, and Sarah Nouwen. “Representational Practices at the International Criminal Court: The Gap between Juridified and Abstract Victimhood.” Law & Contemporary Problems 76 (2013): 235–262.

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  An examination of the tension between the representation of the victim as an abstract entity used to justify ICC prosecutions and the limited role of actual victims in the court’s proceedings.

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• Minow, Martha. Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence. Boston: Beacon, 1998.

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  The author discusses a range of choices in the aftermath of large-scale human rights abuses between vengeance and amnesia, focusing on trials, truth commissions, reparations, restitution, and public apology, and laying out how each balances justice as perceived by victims with societal reconstruction.

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• Moffett, Luke. Justice for Victims before the International Criminal Court. New York: Routledge, 2014.

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  Examines the Northern Uganda case in terms of the ICC’s more victim-centered approach, and argues that these efforts are limited and require complementary commitments from the international community.

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• Neuffer, Elizabeth. The Key to My Neighbor’s House: Seeking Justice in Bosnia and Rwanda. New York: Picador, 2001.

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  A journalist’s detailed account of victims of the Bosnian civil war and the Rwandan genocide that covers their lives before and during the violence and their postwar experiences with international justice mechanisms. Chapter 16, on “Arusha justice,” lays out the tensions between how justice is defined by lawyers and how it is experienced by victims, with a particular focus on rape survivors.

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Amnesties

In the theory and practice of conflict resolution, formal or de facto amnesties have been useful instruments in peacemaking when the strategy was to forge as broad a consensus as possible behind a negotiated solution regardless of the past behavior of the parties. These amnesties were legitimized by Article 6(5) of the Second Additional Protocol (1977) to the 1949 Geneva Conventions, which called for the “broadest possible amnesty to be granted to those who have participated in the armed conflict.” Chigara 2002 makes a legal and moral argument against this practice, and Meisenberg 2004 supports this position by citing a decision of the Special Court for Sierra Leone that a state cannot grant amnesties for international crimes. Mayerfeld 2001 views the ICC as a means of building on this development by committing state parties to refrain from amnesties for international crimes, thereby deterring would-be perpetrators who would otherwise believe they could negotiate their own safety as they were losing power. Mallinder 2008, Freeman 2009, Lessa and Payne 2012, and Jeffery 2014 nonetheless found that amnesty remains an instrument of conflict resolution, and Villa-Vicencio 2000 defends the continued use of the practice as necessary to facilitate transitions to peace or democracy, as was the case in South Africa. As for the ICC, Scharf 1999 lays out the conditions under which the prosecutor might defer to an amnesty, while Robinson 2003 argues that given the ICC’s mandate, there is a strong presumption against doing so.

• Chigara, Ben. Amnesty in International Law: The Legality under International Law of National Amnesty Laws. Harlow, UK: Longman, 2002.

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  A moral and legal critique of amnesty laws for international crimes as a means of erasing victims’ fundamental right to redress for abuses of human rights.

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• Freeman, Mark. Necessary Evils: Amnesties and the Search for Justice. New York: Cambridge University Press, 2009.

  DOI: 10.1017/CBO9780511691850Save Citation »Export Citation » Share Citation »

  While locating amnesties within legal developments against impunity, the author notes that political realities often make prosecution impossible. As a result, amnesties are justified as a last resort in circumstances when the alternative is continuing violence.

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• Jeffery, Renée. Amnesties, Accountability, and Human Rights. Philadelphia: University of Pennsylvania Press, 2014.

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  The author uses a mix of quantitative and case study research to examine the persistence of amnesties between 1970 and 2005, despite normative developments that have sought to delegitimize them. She attributes this to the role they play in transitions from dictatorship or civil violence and in encouraging the truth component of reconciliation processes, though she raises questions about their efficacy in achieving these objectives.

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• Lessa, Francesca, and Leigh A. Payne, ed. Amnesty in the Age of Human Rights Accountability: Comparative and International Perspectives. New York: Cambridge University Press, 2012.

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  A theoretically diverse and multidisciplinary collection of essays that seeks to explain the continuing practice of amnesty despite changes in international legal norms and its broader implications for human rights.

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• Mallinder, Louise. Amnesty, Human Rights, and Political Transitions: Bridging the Peace and Justice Divide. Portland, OR: Hart, 2008.

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  Drawing on a database of over 500 amnesties in 130 countries, the author examines the continued use of this instrument as a conflict resolution tool despite the growth of international legal norms rejecting their legitimacy for international crimes. She concludes that courts should show some deference to amnesties, if accompanied by alternative justice mechanisms as a means of balancing the interests of victims with societal reconstruction.

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• Mayerfeld, Jamie. “The Mutual Dependence of External and Internal Justice: The Democratic Achievement of the International Criminal Court.” Finnish Yearbook of International Law 12 (2001): 71–107.

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  The author argues that accession to the Rome Statute is a self-binding commitment not to grant amnesty for international crimes so as to deter would-be perpetrators by making it impossible for them to leverage their power into immunity from prosecution.

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• Meisenberg, Simon M. “Legality of Amnesties in International Humanitarian Law: The Lomé Amnesty Decision of the Special Court for Sierra Leone.” International Review of the Red Cross 86 (2004): 837–851.

  DOI: 10.1017/S1560775500180484Save Citation »Export Citation » Share Citation »

  An exposition and analysis of the decision by the Special Court for Sierra Leone that the amnesty granted to all the parties in the Lomé Peace Agreement was not a bar to prosecution because of “crystallising international norm that a government cannot grant amnesty for serious violations of crimes under international law.”

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• Robinson, Darryl. “Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court.” European Journal of International Law 14.3 (2003): 481–505.

  DOI: 10.1093/ejil/14.3.481Save Citation »Export Citation » Share Citation »

  An argument for a strong presumption against the ICC prosecutor showing deference to any amnesties involving those most responsible for international crimes, though rare exceptions may be made for democratically sanctioned amnesties that include alternative forms of justice.

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• Scharf, Michael P. “The Amnesty Exception to the Jurisdiction of the International Criminal Court.” Cornell International Law Journal 32.3 (1999): 507–527.

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  This article lays out the circumstances in which a prosecutor might consider deferring to an amnesty agreement, and also examines interpretations of provisions of the Rome Statute through which it could be used to justify such a deferral.

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• Villa-Vicencio, Charles. “Why Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet.” Emory Law Journal 49 (2000): 205–222.

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  A defense of the restorative justice rationale for the TRC and its conditional amnesty as a principled compromise that better enabled post-apartheid South Africa to address its past than would have been the case with trials.

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Alternative Justice Mechanisms

Another controversy surrounding international criminal justice involves the relative merits of international tribunals versus national justice mechanisms, such as national trials, truth commissions, or traditional justice and reconciliation rituals, which also ties into the debate over whether the standards of international criminal law are universal, or whether, as Drumbl 2007 and Nouwen and Werner 2015 suggest, there should be an accommodation to legal pluralism. First, having national trials in the communities where the crimes took place has been advocated by Smith 2009 and others because it makes the proceedings more accessible to victims and increases the impact on the domestic rule of law. On the other hand, Sissons and Bassin 2007 uses the Iraqi Special Tribunal’s trial of Saddam Hussein to show how national trials could amount to a form of political justice that violates internationally recognized principles of due process. Second, truth commissions have become a more frequently used form of transitional justice since the 1980s—see Hayner 2011 and Rotberg and Thompson 2000—and can either be complements to or substitutes for trials. The most famous example of a truth commission was South Africa’s Truth and Reconciliation Commission (TRC), in which amnesty was made conditional upon a full confession of political crimes. Gibson 2006 characterizes truth as an alternative form of justice that, in the South African context, contributed to changes in public attitudes conducive to reconciliation. Critical perspectives on the TRC include Wilson 2001, which views it as a means of legitimizing the post-apartheid state, and Mamdani 2002, which argues that it ignored issues of socioeconomic injustice imposed by apartheid on ordinary citizens. Finally, some countries, particularly in Africa, have used traditional reconciliation rituals as a means of facilitating transitions—see Baines 2007 and Shaw, et al. 2010. One prominent illustration of this are Rwanda’s gacaca courts, which have been criticized by human rights advocates for not providing the accused their universal right of due process, and by some scholars—Thomson 2011—for legitimizing an increasing authoritarian government. By contrast, Clark 2010 argues that gacaca has created more local ownership and reconciliation than provided by trials, and calls for a greater acceptance of a plurality of approaches to transitional justice. For more sources of the diversity of transitional justice mechanisms, see the Oxford Bibliographies article “Transitional Justice.”

• Baines, Erin K. “The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda.” International Journal of Transitional Justice 1.1 (2007): 91–114.

  DOI: 10.1093/ijtj/ijm007Save Citation »Export Citation » Share Citation »

  Based on fieldwork in war-affected regions of northern Uganda, the author critically assesses the advocacy of cultural and religious leaders in addressing the war crimes of the Lord’s Resistance Army, not through prosecution by the ICC, but through non-retributive reconciliation rituals.

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• Clark, Phil. The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice without Lawyers. New York: Cambridge University Press, 2010.

  DOI: 10.1017/CBO9780511761584Save Citation »Export Citation » Share Citation »

  A defense of Rwanda’s gacaca court system—an attempt to adapt traditional community dispute resolution practices to victims and lower-level perpetrators of the Rwandan genocide—for its role in fostering reconciliation by giving ordinary Rwandans ownership over their transitional justice processes.

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• Drumbl, Mark A. Atrocity, Punishment and International Law. New York: Cambridge University Press, 2007.

  DOI: 10.1017/CBO9780511611100Save Citation »Export Citation » Share Citation »

  An examination of the sentencing practices of national and international courts for atrocity crimes to find a middle position between realist critics of international trials and the liberal legalist proponents of their universality. The case is made for a more pluralistic approach of post-conflict justice, given the differences between ordinary domestic crimes and war crimes perpetrated in the diverse political, societal, and cultural contexts in which the law would have to be applied.

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• Gibson, James L. “The Contributions of Truth to Reconciliation.” Journal of Conflict Resolution 50.3 (2006): 409–432.

  DOI: 10.1177/0022002706287115Save Citation »Export Citation » Share Citation »

  The author finds that the TRC contributed to the consolidation of post-apartheid democracy through promoting societal reconciliation.

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• Hayner, Priscilla B. Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. 2d ed. New York: Routledge, 2011.

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  A comprehensive analysis of twenty-one truth commissions and their impact on societal healing and reconstruction. The first edition of the book is the first major work on the topic.

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• Mamdani, Mahmood. “Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC).” Diacritics 32.3–4 (2002): 33–59.

  DOI: 10.1353/dia.2005.0005Save Citation »Export Citation » Share Citation »

  A critique of the TRC for focusing only on the enforcers of apartheid—as opposed to apartheid itself—and victims defined as activists who resisted apartheid. It thereby ignored engaging the beneficiaries of a system of racial oppression, as well as those who were victimized by the system itself rather than by the security forces.

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• Nouwen, Sarah M. H., and Wouter G. Werner. “Monopolizing Global Justice: International Criminal Law as Challenge to Human Diversity.” Journal of International Criminal Justice 13.1 (2015): 157–176.

  DOI: 10.1093/jicj/mqu078Save Citation »Export Citation » Share Citation »

  Drawing on field research in Uganda and Sudan, the authors contend that the increased dominance of an international criminal law paradigm has marginalized alternative conceptions of justice that grow out of the diverse experiences of societies experiencing or emerging from political violence.

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• Rotberg, Robert I., and Dennis Thompson, ed. Truth v. Justice: The Morality of Truth Commissions. Princeton, NJ: Princeton University Press, 2000.

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  An edited volume with wide-ranging perspectives on truth commissions with a primary focus on the TRC in South Africa.

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• Shaw, Rosalind, Lars Waldorf, and Pierre Hazan, ed. Localizing Transitional Justice: Interventions and Priorities after Mass Violence. Stanford, CA: Stanford University Press, 2010.

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  An interdisciplinary and cross-regional collection of essays questioning the legitimacy of universal standards of post-conflict justice and arguing for greater deference toward local grassroots practices.

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• Sissons, Miranda, and Ari S. Bassin. “Was the Dujail Trial Fair?” Journal of International Criminal Justice 5.2 (2007): 272–286.

  DOI: 10.1093/jicj/mqm014Save Citation »Export Citation » Share Citation »

  A critique of the Iraqi Special Tribunal’s first case, for which the former Iraqi president Saddam Hussein was convicted and executed. The case is an illustration of how national trials can be politicized for sectarian purposes, violate fair trial standards, and fail to address the full range of crimes committed by the former regime.

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• Smith, Adam M. After Genocide: Bringing the Devil to Justice. Amherst, NY: Prometheus, 2009.

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  The author challenges the dominant position of human rights advocates and international legal scholars that international criminal tribunals are preferable to national courts, arguing that local justice has more resonance with post-conflict societies.

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• Thomson, Susan. “The Darker Side of Transitional Justice: The Power Dynamics behind Rwanda’s Gacaca Courts.” Africa 81.3 (2011): 373–390.

  DOI: 10.1017/S0001972011000222Save Citation »Export Citation » Share Citation »

  A critique of the gacaca process as an instrument used by the Rwandan Patriotic Front government of Paul Kagame to reinforce its increasing authoritarian control at home and legitimize its image abroad.

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• Wilson, Richard. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State. Cambridge, UK: Cambridge University Press, 2001.

  DOI: 10.1017/CBO9780511522291Save Citation »Export Citation » Share Citation »

  A critique of the TRC as a means of legitimizing the power of the post-apartheid South African state by projecting its identity as a champion of democracy and human rights while failing to engage with the injustices imposed on local communities by apartheid.

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Prosecutors

Prosecutors are the most important court officials that have an impact on world politics. Wouters, et al. 2012 is an encyclopedic volume that analyzes their wide-ranging responsibilities. From an international relations perspective, their most important responsibility is discretion over investigations and cases, which often have significant political implications. International prosecutors—Goldstone 2000, Moreno-Ocampo 2007—insist that they have a legal mandate to make decisions based only on the evidence and the law, and that considering political factors in their discretion would be a violation of their duty. Del Ponte and Sudetic 2008 provides a memoir of how one of Goldstone’s successors at the ad hoc tribunals confronted states and the UN in trying to overcome political resistance to her legal mandate. Crane 2010, by contrast, is one of the few international prosecutors to frankly acknowledge the political dimensions of his decision making. In evaluating these accounts, some more idealistic analysts look skeptically at the claim that international prosecutors have operated above politics. Williams and Taft 2003, for example, criticizes Goldstone for not indicting the Serb and Croat leadership most responsible for ethnic cleansing in Bosnia because they were the chief interlocutors in the Dayton Peace Accords. By contrast, other scholars—Brubacher 2004, Weiner 2013, Goldston 2010—argue that prosecutors need to exercise some degree of political prudence in addressing questions involving the likelihood of state cooperation or the impact of a particular prosecution on peace processes.

• Brubacher, Matthew R. “Prosecutorial Discretion within the International Criminal Court.” Journal of International Criminal Justice 2 (2004): 71–95.

  DOI: 10.1093/jicj/2.1.71Save Citation »Export Citation » Share Citation »

  An argument for adapting an international prosecutor’s legal mandate to political exigencies, since a tribunal’s effectiveness depends upon acting in coordination with, rather than in opposition to, international efforts to address violent conflicts.

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• Crane, David M. “The Take Down: Case Studies Regarding ‘Lawfare’ in International Criminal Justice: The West African Experience.” Case Western Reserve Journal of International Law 43.1–2 (2010): 201–214.

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  The first chief prosecutor of the Special Court for Sierra Leone justifies his controversial decision to unseal the arrest warrant for former Liberian president Charles Taylor during negotiations in Accra designed to end the Liberian civil war by persuading Taylor to step down. In so doing, he is one of the few prosecutors to frankly acknowledge that international justice is political in scope, and that the prosecutor needs to be a “savvy politician and diplomat” in acting strategically to fulfill his or her legal mandate.

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• Del Ponte, Carla, with Chuck Sudetic. Madame Prosecutor: Confrontations with Humanity’s Worst Criminals and the Culture of Impunity. New York: Other Press, 2008.

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  A former chief prosecutor of the ICTR and ICTY describes her political confrontations with recalcitrant states, the United Nations, and the realpolitik considerations of diplomats, in trying to fulfill her judicial mandate.

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• Goldston, James A. “More Candour about Criteria: The Exercise of Discretion by the Prosecutor of the International Criminal Court.” Journal of International Criminal Justice 8.2 (2010): 383–406.

  DOI: 10.1093/jicj/mqq019Save Citation »Export Citation » Share Citation »

  An argument that the ICC prosecutor needs to balance impartiality and independence—both of which are central to the legitimacy of the Court—with the need to take into account international political realities involving the likelihood of arrest, of state cooperation, and of the impact of prosecution on peace processes.

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• Goldstone, Richard J. For Humanity: Reflections of a War Crimes Investigator. New Haven, CT: Yale University Press, 2000.

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  The ICTY’s first chief prosecutor defends his decision to indict the Bosnian Serb leadership despite opposition from some diplomats, arguing that international prosecutors should not take into account any political considerations in issuing their charges, and challenging the purported opposition of peace and justice.

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• Moreno-Ocampo, Luis. “The International Criminal Court: Seeking Global Justice.” Case Western Reserve Journal of International Law 40 (2007): 214–225.

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  The first chief prosecutor of the ICC argues that factoring political considerations into his discretion would be a violation of prosecutorial independence, and that it is states that have a binding legal duty to comply with the law.

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• Weiner, Allen S. “Prudent Politics: The International Criminal Court, International Relations and Prosecutorial Independence.” Washington University Global Studies Law Review 12 (2013): 545–562.

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  An argument for political prudence in prosecutorial discretion. The author uses the experience of prior tribunals to argue that the ICC prosecutor should choose cases where there is political support and where judicial intervention does not interfere with peace processes.

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• Williams, Paul R., and Patricia Taft. “The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement.” Case Western Journal of International Law 35 (2003): 219–253.

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  A critique of Goldstone for being too cautious and deferential to diplomats in not indicting Milošević prior to the Dayton Peace Accords, thereby failing in a prosecutor’s “proper role in influencing the peace process by precluding negotiations with those responsible for international crimes.”

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• Wouters, Jan, Cedric Ryngaert, and Luc Reydams, ed. International Prosecutors. Oxford: Oxford University Press, 2012.

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  An edited volume with chapters from prominent scholars and practitioners and organized thematically to cover every aspect of a prosecutor’s mandate, from the political decision to establish a tribunal to the completion of the investigations.

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Diplomats

Prosecution and diplomacy operate according to different logics. While the former aims at consistency in enforcing the rule of law, the latter seeks to reconcile the conflicting interests of the protagonists regardless of past behavior. Relatively few diplomats have written articles or books that focus primarily on international tribunals, except those, such as Scheffer 2012 and Shattuck 2003, whose portfolios include human rights or international law. Although the book does not focus primarily on the ICTY, Holbrooke 1998 lays out a diplomatic strategy of conflict resolution that happened to dovetail with Goldstone’s indictments—i.e., indicting the Bosnian Serb leadership, who would be excluded from negotiations, while not indicting Milošević, who was Holbrooke’s chief interlocutor—though it also lays out potential conflict between diplomacy and prosecution had Goldstone indicted Milošević, whom many observers viewed as bearing ultimately responsibility for the ethnic-cleansing campaigns in Bosnia. Those conflicts are also laid out in Bosco 2014, which documents the Obama administration’s reservations about the ICC’s arrest warrant for the Libyan leader Muammar Qaddafi in the middle of the Libyan civil war and in its subsequent reluctance to turn to the ICC in other active conflict zones. Guéhenno 2015 and Holmes 2013 present the perspective of UN diplomats addressing the potential contributions of, and conflicts with, peacekeeping and humanitarian operations, relationships that are also analyzed by Lanz 2008.

• Bosco, David. “Cool Ties.” Foreign Policy, 28 February 2014.

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  A short article that builds on one of the episodes in Rough Justice (Bosco 2014, cited under Enforcement and Compliance), in which Obama administration officials approached Moreno-Ocampo to delay the indictment of the Libyan leader Muammar Qaddafi so as not to preclude third-country exile as a means of ending the Libyan civil war. Moreno-Ocampo’s decision to move forward with the indictment led to greater US skepticism as to the utility of ICC interventions in zones of active conflict.

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• Guéhenno, Jean-Marie. The Fog of Peace: A Memoir of International Peacekeeping in the 21st Century. Washington, DC: Brookings Institution, 2015.

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  In this memoir by the former UN head of peacekeeping, there is some discussion of both the tensions with and the synergies between the ICC and peacekeeping in Sudan and the Democratic Republic of the Congo.

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• Holbrooke, Richard. To End a War. New York: Random House, 1998.

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  This memoir of the Clinton administration’s envoy as chief mediator to the Bosnian peace talks lays out his diplomatic strategy of concentrating pressure on Milošević to speak for and deliver the Bosnian Serb leadership. This strategy was facilitated by Goldstone’s indictments against the Bosnian Serb president Radovan Karadžić and General Ratko Mladić, which made them ineligible to attend the Dayton peace talks, and by the absence of an indictment against Milošević, despite his key role in triggering the war.

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• Holmes, John. The Politics of Humanity: The Reality of Relief Aid. London: Head of Zeus, 2013.

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  A memoir by the UN’s former humanitarian coordinator, who served at the time when thirteen humanitarian organizations were expelled from Sudan after its president, Omar Hassan al-Bashir, had been indicted by the ICC. The book’s chapter on Darfur describes that experience and notes some of the conflicts between criminalization and the more consent-based nature of humanitarian and peace operations.

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• Lanz, David. Conflict Management and Opportunity Cost: The International Response to the Darfur Crisis. Madrid: Fundación para las Relaciones Internacionales y el Diálogo Exterior, September 2008.

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  A study of the potential conflicts between international criminal justice, humanitarian aid, peacekeeping and peace building with the ICC’s intervention in Darfur as an illustration.

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• Scheffer, David. All the Missing Souls: A Personal History of the War Crimes Tribunals. Princeton, NJ: Princeton University Press, 2012.

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  A memoir from the Clinton administration’s ambassador-at-large for war crimes on efforts to create the International Criminal Court and tribunals to address large-scale violence against civilians in the Balkans, Rwanda, Sierra Leone, and Cambodia, laying out the challenges of overcoming and sometimes compromising with political concerns in establishing international justice mechanisms.

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• Shattuck, John. Freedom on Fire: Human Rights and America’s Response. Cambridge, MA: Harvard University Press, 2003.

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  The former top human rights official in the Clinton administration’s State Department describes his experience of trying to elevate human rights, including international justice mechanisms, in US foreign policy, with a particular focus on the Balkans and Rwanda.

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NGOs and Civil Society Organizations

The actors supportive of the most idealistic construction of international criminal justice have been members of a transnational network of human rights organizations and lawyers who acted as norm entrepreneurs attempting to socialize states into accepting a duty to prosecute international crimes—the most important of which were the premier human rights NGOs, such as Human Rights Watch and Amnesty International. These actors formed the Coalition for the International Criminal Court, which pushed for the creation of the ICC and at Rome sought to persuade states to create an independent Office of the Prosecutor that could investigate crimes without political interference from states or the UN Security Council. NGO perspectives include Neier 2012, which provides an overview of the campaign to create institutions of international justice, and Roth 2001, which defends these institutions against the realist critique provided by Kissinger 2001 (cited under Realism and Power-Based Theories). Glasius 2006 documents the role of NGOs in pushing states to accept an ICC with an independent prosecutor at the negotiations in Rome, while Welch and Watkins 2011 examines their role in influencing the ICC and the international community’s commitment to it after the court’s creation. A good illustration of that advocacy is Evenson 2011, which calls for a more aggressive investigation of state agents in those situations where governments have referred investigations on their own territory. NGOs, however, have not been monolithic in advocating a universal duty to prosecute. Whereas human rights organizations try to publicize violations and call for the prosecution of core crimes, humanitarian NGOs need to operate impartially with the consent of the government. These differences came to a head after Sudan expelled thirteen international humanitarian organizations after the confirmation of the ICC arrest warrant for its president, Omar Hassan al-Bashir, leading Médecins Sans Frontières to publicize its opposition to the ICC’s involvement (see Weissman 2009). NGOs in the countries subject to investigation are divided as well. While many national human rights organizations welcome ICC involvement, others do not. One of the most prominent examples of the latter, documented by Apuuli 2011, is the role of civil society organizations in northern Uganda opposing the involvement of the ICC in pursuing arrest warrants for the leaders of the rebel Lord’s Resistance Army on the grounds that prosecution would likely abort any prospective peace process and prolong the war.

• Apuuli, Kasaija Phillip. “Peace over Justice: The Acholi Religious Leaders Peace Initiative (ARPLI) vs. the International Criminal Court (ICC) in Northern Uganda.” Studies in Ethnicity and Nationalism 11.1 (2011): 116–129.

  DOI: 10.1111/j.1754-9469.2011.01101.xSave Citation »Export Citation » Share Citation »

  An analysis of how civil society organizations in northern Uganda have mobilized against the ICC’s arrest warrants for the leaders of the rebel Lord’s Resistance Army because they view the war as the principal source of their victimization, which is likely to be prolonged by prosecution. Their preference is for amnesties combined with non-punitive reconciliation rituals in order to reintegrate combatants back into the community.

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• Evenson, Elizabeth. Unfinished Business: Closing the Gaps in the Selection of ICC Cases. New York: Human Rights Watch, 15 September 2011.

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  A critique of the ICC prosecutor for being overly cautious in not building cases against state agents in those African countries that have referred investigations on their own territory. It argues that the ICC should investigate and prosecute official wrongdoing even when it is politically inconvenient, and warns that failure to do so will lead to a loss of legitimacy by contributing to the perception that the court is aligned with the states that invites them in.

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• Glasius, Marlies. The International Criminal Court: A Global Civil Society Achievement. New York: Routledge, 2006.

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  Explores the key role of NGOs in influencing the negotiations at Rome to establish a permanent international criminal court whose design was as insulated as possible from manipulation by major powers.

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• Neier, Aryeh. “Accountability.” In The International Human Rights Movement: A History. By Aryeh Neier, 258–285. Princeton, NJ: Princeton University Press, 2012.

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  An overview of the role of the international human rights movement in lobbying for international accountability, beginning with their activism in establishing the ICTY during the war in Bosnia and concluding with their campaign for the International Criminal Court.

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• Roth, Kenneth. “The Case for Universal Jurisdiction.” Foreign Affairs 80.5 (2001): 150–154.

  DOI: 10.2307/20050258Save Citation »Export Citation » Share Citation »

  A rebuttal to Kissinger’s realist case against international criminal justice (Kissinger 2001, cited under Realism and Power-Based Theories), arguing that both the ICC and universal jurisdiction are part of an emerging international legal system in which perpetrators would have “no place to hide” from international justice, and that the United States should welcome rather than fear these institutions, since their activities complement US foreign policy interests in strengthening the rule of law abroad.

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• Weissman, Fabrice. Humanitarian Aid and the International Criminal Court: Grounds for a Divorce. Paris: Centre de reflexion sur l action et les savoirs humanitaires (CRASH), 2009.

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  Written shortly after the Sudanese government’s expulsion of humanitarian organizations in retaliation for the confirmation of the Bashir arrest warrant, the author notes that international judicial intervention works at cross-purposes with the consent-based approaches that humanitarians rely on to gain access to vulnerable populations.

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• Welch, Claude E., Jr., and Ashley F. Watkins. “Extending Enforcement: The Coalition for the International Criminal Court.” Human Rights Quarterly 33.4 (2011): 927–1031.

  DOI: 10.1353/hrq.2011.0055Save Citation »Export Citation » Share Citation »

  The authors examine the independent role of transnationally organized human rights organizations in both the creation of the ICC and in broadening its influence over time.

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Nuremberg

The International Military Tribunal (IMT) at Nuremberg was established by the four victorious allies (the US, UK, France, and the Soviet Union) after the Second World War, and tried twenty-two high-level Nazi leaders on charges of aggression, war crimes, and crimes against humanity. Persico 1994 and Tusa and Tusa 1984 provide comprehensive narratives of the trial, while Mettraux 2008 contains a collection of essays on legal aspects of the trial written both by participants in and observers of the trial just after its completion and by contemporary scholars. After the IMT, the occupying powers conducted a number of other trials in Germany, the most significant of which were the twelve Control Council No. 10 trials conducted in Nuremberg from 1946 until 1949 to establish accountability over the political, military, legal, medical, and corporate actors complicit in Nazi criminality. Heller 2011 and Maguire 2002 provide expositions of those trials, with the former’s primary emphasis on their influence on the development of international law and the latter’s on how the escalation of the Cold War led the United States to back off from its own creation. The Nuremberg trials also had a political purpose—to assist the democratization of Germany by purging it of its Nazi past through exposing to the Germany public the crimes that had been committed in its name. Maguire 2002 documents how the growing German public opposition to the trials undermined its pedagogical objectives, while Bloxham 2005 faults the trials for not fully exposing the Holocaust. Berger 2012 explains how the lessons of Nuremberg drawn by Germans evolved over time, as they were interpreted differently as the result of the political divisions that existed in the Federal Republic of Germany.

• Berger, Thomas U. War, Guilt and World Politics after World War II. Cambridge, UK: Cambridge University Press, 2012.

  DOI: 10.1017/CBO9781139109437Save Citation »Export Citation » Share Citation »

  A comparative analysis of how national politics within Germany, Austria, and Japan influenced each country’s response to the revelations of wartime atrocities during the Second World War.

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• Bloxham, Donald. Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory. Oxford: Oxford University Press, 2005.

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  Examining the IMT as well as many of the lesser-known trials, the author highlights the failures of Nuremberg to prosecute and expose the Holocaust, thereby undermining one the didactic purposes of the trials in influencing postwar German public opinion.

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• Heller, Kevin Jon. The Nuremberg Military Tribunals and the Origins of International Criminal Law. Oxford: Oxford University Press, 2011.

  DOI: 10.1093/acprof:oso/9780199554317.001.0001Save Citation »Export Citation » Share Citation »

  The most comprehensive account of the twelve military tribunals established at Nuremberg under the Control Council No. 10 law, focusing primarily on their jurisprudence and legacy.

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• Maguire, Peter. Law and Politics: An American Story. New York: Columbia University Press, 2002.

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  A major portion of this book focuses on the Control Council No. 10 trials at Nuremberg and what the author refers to as the “Cold War conflict of interest,” in which the goal of securing the full cooperation of the Federal Republic of Germany in the North Atlantic Treaty Organization led American policymakers to abandon the trials.

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• Mettraux, Guénaël, ed. Perspectives on the Nuremberg Trials. Oxford: Oxford University Press, 2008.

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  A voluminous collection of essays that includes evaluations of the trials from participants and their contemporaries, as well as critical assessments by modern legal scholars.

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• Persico, Joseph E. Nuremberg: Infamy on Trial. New York: Viking, 1994.

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  An engagingly written journalistic account of the trial, with a historical narrative that focuses on the clashes among the personalities involved in the process.

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• Tusa, Ann, and John Tusa. The Nuremberg Trial. London: Macmillan, 1984.

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  A thorough and detailed narrative of the tribunal from its creation to the conduct of the trials.

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International Military Tribunal for the Far East

The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo War Crimes Tribunal, prosecuted twenty-eight Class A war criminals for aggression, war crimes, and crimes against humanity. The design of the trial was similar to that of Nuremberg, with the United States playing the overarching role in establishing the tribunal, since it alone was the occupying power in Japan. Dower 1999 provides insight into the interplay between politics and law, focusing on the decision to exempt Hirohito in order to facilitate the US occupation of Japan, the broader purpose of the trials in reforming Japan along democratic and pacific lines, and the subsequent abandonment of the trials as the result of the Cold War in Asia. Brackman 1987 is a detailed journalistic account of the trial, while Boister and Cryer 2008 is a thorough legal analysis of the trial. Minear 1971 and Maga 2001 are on opposite sides of the “victor’s justice” debate. Kopelman 1990 and Varadarajan 2015 assess the dissenting position of Judge Radhabinod Pal, who voted to acquit all of the defendants on all charges, both in terms of his legal arguments and his view of the tribunal as a means of legitimizing an imperial project. Totani 2009, by contrast, challenges Pal’s critique and defends the tribunal against charges of victor’s justice. Chang and Barker 2001 and Buruma 1994 address the question of why the lessons of Tokyo have had less resonance in Japan than the lessons of Nuremberg have had in Germany. Ryan 2012 addresses the Yamashita trial, which established the principle of command responsibility, and its impact on post–World War II legal developments.

• Boister, Neil, and Robert Cryer. The Tokyo International Military Tribunal: A Reappraisal. New York: Oxford University Press, 2008.

  DOI: 10.1093/acprof:oso/9780199278527.001.0001Save Citation »Export Citation » Share Citation »

  The most comprehensive account written on the Tokyo tribunal focusing on its legal dimensions. While the authors reappraise some elements of Tokyo, drawing on archival research, they nonetheless conclude that much of the conduct of the trial violated internationally accepted standards of due process.

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• Brackman, Arnold C. The Other Nuremberg: The Untold Story of the Tokyo War Crimes Trials. New York: William Morrow, 1987.

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  A detailed journalistic account of the tribunal, which the author had covered as a correspondent.

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• Buruma, Ian. The Wages of Guilt: Memories of War in Germany and Japan. New York: Farrar, Straus and Giroux, 1994.

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  A comparative analysis of the responses of German and Japanese politics and society to the revelations of wartime atrocities, attributing the former’s greater willingness to acknowledge the past to the difference between a guilt culture and a shame culture.

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• Chang, Maria Hsia, and Robert P. Barker. “Victor’s Justice and Japan’s Amnesia: The Tokyo War Crimes Trial Reconsidered.” East Asia 19.4 (2001): 55–84.

  DOI: 10.1007/s12140-001-0017-xSave Citation »Export Citation » Share Citation »

  The authors argue that the Tokyo tribunal was flawed but legitimate in exposing atrocity crimes committed during Japan’s imperial wars, though it contributed to the Japanese public’s perception that it was more a victim than an aggressor during the Second World War.

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• Dower, John W. Embracing Defeat: Japan in the Wake of World War II. New York: Norton, 1999.

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  Chapter 15 covers the political considerations that influenced the US decision both to create the IMTFE and also compromise it, first by excluding Emperor Hirohito from the trial in order to make the American occupation of Japan more manageable, and later in abandoning the trials as the result of Cold War considerations, thereby limiting the impact of the trials on Japanese politics and public opinion.

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• Kopelman, Elizabeth S. “Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War Crimes Trial.” New York University Journal of International Law and Politics 23 (1990): 373–444.

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  An analysis of the dissenting opinion of the Indian judge, Radhabinod Pal, who voted to acquit all of the defendants on each of the charges. Underneath Pal’s legal arguments was a critique of the politicization of the trial to serve American ideological goals.

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• Maga, Timothy P. Judgment at Tokyo: The Japanese War Crimes Trials. Lexington: University Press of Kentucky, 2001.

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  A defense of the Tokyo War Crimes Tribunal, focusing primarily on issues of procedural fairness.

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• Minear, Richard H. Victors’ Justice: The Tokyo War Crimes Trial. Princeton, NJ: Princeton University Press, 1971.

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  Written in the context of the Vietnam War, the Tokyo tribunal is characterized as an imperial exercise in “victor’s justice,” both for misrepresenting history and misapplying international law.

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• Ryan, Allan A. Yamashita’s Ghost: War Crimes, MacArthur’s Justice and Command Responsibility. Lawrence: University of Kansas Press, 2012.

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  Written by a former US Justice Department official tasked with prosecuting Nazi war criminals who fled to the United States, this book examines the trial of General Tomoyuki Yamashita in a military commission in the Philippines. In establishing the principle of command responsibility (i.e., that a superior is responsible for the activities of his soldiers), this was the only Japanese war crimes trial that had a significant impact on the development of international law.

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• Totani, Yuma. The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II. Cambridge, MA: Harvard University Press, 2009.

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  A Japanese historian’s defense of the Tokyo tribunal as an important step in the development of international criminal law that placed a significant emphasis on Asian, not just Western, victims, followed by an exposition and critical analysis of both Judge Pal’s dissent and the support for it in revisionist Japanese accounts.

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• Varadarajan, Latha. “The Trials of Imperialism: Radhabinod Pal’s Dissent at the Tokyo Tribunal.” European Journal of International Relations 21.4 (2015): 793–815.

  DOI: 10.1177/1354066114555775Save Citation »Export Citation » Share Citation »

  A re-evaluation of Judge Pal’s dissent as a means of exploring the imperial sources of international law.

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International Criminal Tribunal for the Former Yugoslavia

The International Criminal Tribunal for the former Yugoslavia (ICTY) was authorized by the UN Security Council on 25 May 1993 to investigate and prosecute criminal violence in the ethnic-cleansing campaigns of the former Yugoslavia. Unlike Nuremberg and Tokyo, the ICTY was established in the middle of an ongoing war in Bosnia—in theory, to deter the escalation of violence against civilians. However, the tribunal was not able to prosecute anyone of significance until NATO used force directly and indirectly in order to end the war, and Western governments used economic carrots and sticks (reconstruction aid, a path to EU membership) to persuade former Yugoslav republics to hand over suspects that many of their citizens hailed as nationalist heroes. Kerr 2004 and Hazan 2004 provide, respectively, a scholarly and a journalistic account of the relationship between politics and law in the court’s creation, indictments, and trials. Williams and Scharf 2002 assesses this relationship critically by taking diplomats and prosecutors to task—the former for political interference, and the latter for adapting to politics rather than pursuing strategies of legal rectitude. Good sources on the conduct of trials and their impact are Scharf 1997, on the ICTY’s first trial, and Waters 2014, on lessons learned from the Milošević trial. Contrasting views on the impact of the ICTY on national human rights and accountability are provided by Subotić 2009, which argues that the court was instrumentalized by political elites for illiberal purposes, and Nettlefield 2010, which argues that the trials mobilized civil society and catalyzed judicial reform.

• Hazan, Pierre. Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia. College Station: Texas A & M University Press, 2004.

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  A journalist’s account of the creation of the ICTY and its practice during the conflicts in Bosnia and Kosovo, with a strong emphasis on the relationship between diplomats, who are often skeptical of criminal justice for complicating negotiations, and three chief prosecutors, who tried to navigate the tension between their judicial mandates and the political environment.

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• Kerr, Rachel. The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy. Oxford: Oxford University Press, 2004.

  DOI: 10.1093/0199263051.001.0001Save Citation »Export Citation » Share Citation »

  A comprehensive overview of the interplay of law and politics in the ICTY’s creation and its investigations and trials. It concludes that Western states viewed the tribunal as an instrument of politics, but the court was able to insulate the administration of justice from politicization.

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• Nettlefield, Lara J. Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State. New York: Cambridge University Press, 2010.

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  Based on fieldwork in Bosnia, this multi-method study challenges the pessimistic conventional wisdom on the ICTY, making the case that it has contributed to the consolidation of democracy and rule of law through its role in mobilizing civil society groups and in catalyzing the creation of new judicial institutions.

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• Scharf, Michael P. Balkan Justice: The Story behind the First International War Crimes Trial since Nuremberg. Durham, NC: Carolina Academic Press, 1997.

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  A blow-by-blow account of the trial of Duško Tadić, the first by the ICTY, and its implications for inaugurating a new era of human rights enforcement.

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• Subotić, Jelena. Hijacked Justice: Dealing with the Past in the Balkans. Ithaca, NY: Cornell University Press, 2009.

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  An explanation of how local political elites used international criminal justice instrumentally to pursue partisan objectives that undercut the purported transformative impact of transitional justice.

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• Waters, Timothy W., ed. The Milošević Trial: An Autopsy. New York: Oxford University Press, 2014.

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  An interdisciplinary collection of essays by scholars and practitioners on the lessons and legacy of the Milošević trial.

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• Williams, Paul R., and Michael P. Scharf. Peace with Justice? War Crimes and Accountability in the Former Yugoslavia. Boulder, CO: Rowman & Littlefield, 2002.

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  Written by two legal scholars who served as State Department lawyers, this book criticizes the UN and Western governments for subordinating justice and accountability in their efforts to mediate an end to the wars in the former Yugoslavia, and the first ICTY prosecutor, Richard Goldstone, for not indicting the Serb and Croat leaders most responsible for plunging Bosnia into war.

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International Criminal Tribunal for Rwanda

The International Criminal Tribunal for Rwanda (ICTR) was authorized by Security Council Resolution 955 on 8 November 1994 to prosecute the genocide and other crimes associated with the Rwandan civil war. Moghalu 2005 and Cruvellier 2010 provide overviews of the court’s record, focusing both on the precedents set by the court and on some of its problems, most notably in securing full cooperation with the Rwandan government. Waldorf 2011 explains how Rwanda successfully sidelined Chief Prosecutor Carla Del Ponte’s attempt to prosecute some members of the victorious Rwandan Patriotic Front, which transformed the ICTR into an instrument of victor’s justice. Several of the essays in Straus and Waldorf 2011 make the case that Rwandan president Paul Kagame has used ICTR, national trials, and the gacaca courts as instruments to intimidate regime critics and consolidate power, though Betts 2005 provides a more cautiously optimistic view of these mechanisms. The case for grassroots mechanisms over international tribunals is made by Uvin and Mironko 2003, which argues that the gacaca courts have had more resonance with the population than either the ICTR or national trials.

• Betts, Alexander. “Should Approaches to Post-Conflict Justice and Reconciliation be Determined Globally, Nationally or Locally?” European Journal of Development Research 17.4 (2005): 735–752.

  DOI: 10.1080/09578810500367508Save Citation »Export Citation » Share Citation »

  The author argues that the ICTR, national trials, and local grassroots approaches to post-conflict were complementary rather than competitive with each other, while noting the role of politics in influencing each of the mechanisms.

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• Cruvellier, Thierry. Court of Remorse: Inside the International Criminal Tribunal for Rwanda. Madison: University of Wisconsin Press, 2010.

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  A journalist’s concise account of the ICTR, which attributes many of its limitations to the fact that for the international community, it was less a commitment to international justice than it was an act of contrition for its failure to stop the Rwandan genocide.

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• Moghalu, Kinsgley. Rwanda’s Genocide: The Politics of Global Justice. New York: Palgrave-Macmillan, 2005.

  DOI: 10.1057/9781403978387Save Citation »Export Citation » Share Citation »

  Written by a former official at the ICTR, this book provides a thorough insider’s view of the tribunal’s experience, explaining how its legal mandate and effectiveness were influenced by the political calculations of major powers in the Security Council and the strategies of the post-genocide government in Rwanda.

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• Straus, Scott, and Lars Waldorf, ed. Remaking Rwanda: State Building and Human Rights after Mass Violence. Madison: University of Wisconsin Press, 2011.

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  Part III of this book on contemporary Rwandan politics consists of essays on how ICTR and national justice mechanisms have been used by the government to promote an anti-genocide ideology designed to buttress an increasingly authoritarian regime against domestic protest and international critics.

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• Uvin, Peter, and Charles Mironko. “Western and Local Approaches to Justice in Rwanda.” Global Governance 9.2 (2003): 219–231.

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  The authors argue that Western prosecutorial approaches to post-conflict justice, such as the ICTR or national trials, have less resonance than traditional community-based practices, such as gacaca, in promoting societal reconciliation.

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• Waldorf, Lars. “Mere Pretense of Justice: Complementarity, Sham Trials, and Victor’s Justice at the Rwanda Tribunal.” Fordham International Law Journal 33.4 (2011): 1221–1277.

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  A critique of the willingness of the international community and the ICTR prosecutors to forego even-handed justice in post-genocide Rwanda by accepting the legitimacy of a single Rwandan show trial designed to portray RPF attacks on civilians during the civil war as isolated acts of revenge rather than as part of a broader pattern of behavior.

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Hybrid Courts

The United Nations established a number of hybrid courts in negotiations with post-conflict states, an overview of which is provided by Fichtelberg 2015. The initial experiments in hybrid justice were the Special Court for Sierra Leone (SCSL), Extraordinary Chamber of the Courts of Cambodia (ECCC), and Special Panel for Serious Crimes in East Timor. Since then, hybrid courts have also been established in Kosovo, Bosnia, and Lebanon, and they have been proposed for other conflict-affected countries. These tribunals were composed of national and foreign judges with an international prosecutor, using a mix of domestic and international criminal law. Dickinson 2003 notes that, in theory, hybrid courts were designed to promote the principal benefits of national trials by administering justice where the crimes occurred, making them more accessible to victims and more resonant with post-conflict societies. They would also guard against the risk that the trials would become a form of partisan justice, since international involvement would ensure that they take place according to universally accepted fair trial standards. Sriram 2005 and Kelsall 2006 raise questions about the SCSL’s resonance in Sierra Leone, despite its location in Freetown, due to its lack of connection with the domestic legal system and with the broader public. Linton 2001, Stensrud 2009, and McAuliffe 2011 examine how local power realities or weak domestic institutions can compromise a hybrid court’s mandate even with international participation. The most blatant example of this kind of politicization has been in the Cambodian case, as documented by McCargo 2011 and Ciorciari and Heindel 2014.

• Ciorciari, John D., and Anne Heindel. Hybrid Justice: The Extraordinary Chambers in the Courts of Cambodia. Ann Arbor: University of Michigan Press, 2014.

  DOI: 10.3998/mpub.4773450Save Citation »Export Citation » Share Citation »

  A thorough overview of the operation of the ECCC from its origins through the trials and the difficulties the non-Cambodian members of the court have had in insulating it from politicization.

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• Dickinson, Laura. “The Promise of Hybrid Courts.” American Journal of International Law 97.2 (2003): 295–310.

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  The author suggests that hybrid courts should be added to the menu of transitional justice mechanisms, since they are closer to, and have more resonance, with local communities, while their international character will increase the likelihood of a fair trial consistent with international human rights law.

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• Fichtelberg, Aaron. Hybrid Tribunals: A Comparative Examination. New York: Springer, 2015.

  DOI: 10.1007/978-1-4614-6639-0Save Citation »Export Citation » Share Citation »

  A comparative analysis of five hybrid internationalized courts (Sierra Leone, Cambodia, East Timor, Lebanon, and Kosovo), focusing on the political processes that led to their creation, their mandates and structures, and the effectiveness of their prosecutions.

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• Kelsall, Tim. “Politics, Anti-politics, International Justice: Language and Power in the Special Court for Sierra Leone.” Review of International Studies 32.4 (2006): 587–602.

  DOI: 10.1017/S0260210506007170Save Citation »Export Citation » Share Citation »

  A critique of the Special Court for Sierra Leone’s application of purportedly universal legal standards that operate above politics. The result was a court insufficiently embedded into Sierra Leonean society, relying on legal doctrines at odds with local realities, and lacking engagement with the public and the national legal system.

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• Linton, Suzannah. “Cambodia, East Timor and Sierra Leone: Experiments in International Justice.” Criminal Law Forum 12.2 (2001): 185–246.

  DOI: 10.1023/A:1013344422072Save Citation »Export Citation » Share Citation »

  A comparative analysis of the first three hybrid courts that highlights areas where the legal process fell short of international fair trial standards. It concludes by advocating for UN efforts to address those shortcomings so as to ensure due process and impartiality.

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• McAuliffe, Padraig. “Hybrid Tribunals at Ten: How International Criminal Justice’s Golden Child Became an Orphan.” Journal of International Law and International Relations 7 (2011): 1–65.

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  A comparative analysis of five hybrid courts to explain why the results so far have not lived up to their expectations in terms of domestic legitimacy and capacity building, attributing those limitations to the power realities that created compromises in the design and practice of those institutions.

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• McCargo, Duncan. “Politics by Other Means? The Virtual Trials of the Khmer Rouge Tribunal.” International Affairs 87.3 (2011): 613–627.

  DOI: 10.1111/j.1468-2346.2011.00993.xSave Citation »Export Citation » Share Citation »

  The author argues that the Hun Sen government is using the ECCC to deflect international and domestic pressure against its poor human rights record and interfering with its docket to avoid politically inconvenient trials. In response, he suggests that the UN should consider withdrawing from participation in the trials to avoid the tribunal’s capture by an authoritarian government.

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• Sriram, Chandra Lehka. “Wrong-Sizing International Justice—The Hybrid Tribunal in Sierra Leone.” Fordham International Law Journal 29 (2005): 472–506.

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  The author uses the Special Court for Sierra Leone to raise questions about whether the hybrid court is more effective than international or purely national trials in terms of its impact in strengthening the domestic rule of law.

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• Stensrud, Ellen Emilie. “New Dilemmas in Transitional Justice: Lessons from the Mixed Courts in Sierra Leone and Cambodia.” Journal of Peace Research 46.1 (2009): 5–15.

  DOI: 10.1177/0022343308096152Save Citation »Export Citation » Share Citation »

  The author uses the hybrid courts in Sierra Leone and Cambodia to examine their potential advantages in terms of their impact in promoting the rule of law in post-conflict societies, but also notes the limits of such an approach where the local judiciary is weak or corrupt.

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Universal Jurisdiction

During the 1990s, a number of countries, mostly in Europe, passed universal jurisdiction laws that allowed national magistrates to investigate and try cases against those accused of international crimes, even if there was no connection to their nationals or their territory (see Reydams 2003 and Bhuta and Schurr 2006). The high watermark for universal jurisdiction was the decision of the British Law Lords that the former Chilean dictator Augusto Pinochet could be extradited to Spain to stand trial for torture because, as a former head of state, his immunity from foreign prosecution only applied to acts in his official capacity, but not to torture, which is defined as an international crime in the Convention against Torture. While some critics feared that the process could trigger a backlash against democratization in Chile (e.g., Lagos and Muñoz 1999), Roht-Arriaza 2005, Davis 2006, and Lutz and Sikkink 2001 found that externalized justice catalyzed stronger commitments to accountability. The Princeton Principles sought to build on the Pinochet precedent—see Macedo 2004—but the next decade presented legal and political challenges to universal jurisdiction that would rein in its use. First, in the Yerodia case, the International Court of Justice ruled that Belgium had to vacate an arrest warrant for a Congolese foreign minister because he had absolute personal immunity from foreign prosecution, which could only be overridden if the immunity was waived, if he stepped down, or if the warrant was issued by an international, as opposed to a national, court. Sands 2003 and Moghalu 2008 provide contrasting perspectives on whether this was a step backward for international law. Second, controversies surrounding proceedings against US, Chinese, and Israeli officials triggered political pressures to scale back universal jurisdiction in Belgium, Spain, and Great Britain. Langer 2015 notes that states consequently used universal jurisdiction less as a vehicle for borderless justice than as a means of prosecuting war criminals that sought asylum on their territory. Third, proceedings against African suspects created a backlash from the African Union against what it characterized as a neocolonial practice, as documented and assessed in Jalloh 2010 and van der Wilt 2011. Bronner 2014 reports on one exception to this trend—the trial of the former Chadian dictator Hissène Habré, in Senegal, in an agreement with the African Union to establish the Extraordinary African Chambers in what amounts to a hybrid version of universal jurisdiction.

• Bhuta, Nehal, and Jrgen Schurr. Universal Jurisdiction in Europe: The State of the Art. New York: Human Rights Watch, 27 June 2006.

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  A comprehensive overview of universal jurisdiction laws and practice throughout the European Union from one of the human rights organizations that advocates a stronger commitment to extraterritorial human rights enforcement.

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• Bronner, Michael. “Our Man in Africa.” Foreign Policy 204 (2014): 34–47.

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  A detailed account of the process that led to the trial of the former Chadian dictator Hissène Habré in an internationalized court in Senegal—the first universal jurisdiction case conducted in Africa. The story dovetails with constructivist arguments regarding the influence of a transnational justice network of victims, human rights organizations, and international institutions in making the trial possible.

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• Davis, Madeleine. “Externalised Justice and Democratisation: Lessons from the Pinochet Case.” Political Studies 54.2 (2006): 245–266.

  DOI: 10.1111/j.1467-9248.2006.00601.xSave Citation »Export Citation » Share Citation »

  Contrary to the predictions of those who feared the Spanish cases against Pinochet and Argentine officials involved in the “dirty war” would trigger a backlash, the author argues that the international trials served as a catalyst for stronger national commitments to democracy and accountability.

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• Jalloh, Charles Chernor. “Universal Jurisdiction, Universal Prescription? A Preliminary Assessment of the African Union Perspective on Universal Jurisdiction.” Criminal Law Forum 21.1 (2010): 1–65.

  DOI: 10.1007/s10609-010-9115-zSave Citation »Export Citation » Share Citation »

  An exposition of African Union objections to European universal jurisdiction cases against alleged African perpetrators. While many of the AU’s arguments are presented as self-serving, the author argues that European magistrates need to respond to legitimate concerns, such as the immunities of sitting officials under customary international law and the potentially destabilizing impact of prosecutions in certain environments.

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• Lagos, Ricardo, and Heraldo Muñoz. “The Pinochet Dilemma.” Foreign Policy 114 (1999): 26–39.

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  The authors—two Chilean politicians who served under the socialist government of Salvador Allende—opposed Pinochet’s extradition from Great Britain to stand trial in Spain because of the concern that it could trigger a right-wing backlash against the democratization process. The argument is framed within a broader critique of the practice of foreign courts interfering with national choices between amnesty and justice for those countries transitioning out of war or dictatorship.

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• Langer, Máximo. “Universal Jurisdiction Is Not Disappearing: The Shift from ‘Global Enforcer’ to ‘No Safe Haven’ Universal Jurisdiction.” Journal of International Criminal Justice 13.2 (2015): 245–256.

  DOI: 10.1093/jicj/mqv009Save Citation »Export Citation » Share Citation »

  Despite a major power backlash against universal jurisdiction, the practice is not disappearing. Rather, it has been transformed from the aspiration to enforce borderless justice to a practice that denies refuge to war criminals in those states where the investigations take place.

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• Lutz, Ellen, and Kathryn Sikkink. “The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America.” Chicago Journal of International Law 2 (2001): 1–34.

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  Written shortly after the Pinochet case, this is an early version of the “justice cascade” argument that attributed the outcome to a shift in international norms regarding the legitimacy of prosecuting human rights abuses in foreign or international courts, which in turn has contributed to improved human rights practices in those states where the crimes took place.

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• Macedo, Stephen, ed. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes under International Law. Philadelphia: University of Pennsylvania Press, 2004.

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  This volume begins with the Princeton Principles on Universal Jurisdiction, a set of fourteen guidelines drafted by scholars and jurists after the Pinochet case, and is followed by thirteen essays on the history and record of universal jurisdiction and its prospects for enforcing human rights.

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• Moghalu, Kingsley Chiedu. “The Rise and Fall of Universal Jurisdiction.” In Global Justice: The Politics of War Crimes Trials. By Kingsley Chiedu Moghalu, 76–103. Stanford, CA: Stanford University Press, 2008.

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  A critique of the more idealistic claims for universal jurisdiction made in the Princeton Principles and a defense of the Yerodia decision for recognizing that immunities for those in office are needed to facilitate diplomacy, maintain international order, and provide a barrier to imperial efforts to compromise the sovereignty of weaker members of the international community.

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• Reydams, Luc. Universal Jurisdiction: International and Municipal Legal Perspectives. New York: Oxford University Press, 2003.

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  A thorough and detailed analysis of the international and municipal legal bases for universal jurisdiction and of its practice in fourteen Western countries.

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• Roht-Arriaza, Naomi. The Pinochet Effect: Transnational Justice in an Age of Human Rights. Philadelphia: University of Pennsylvania Press, 2005.

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  A thorough and detailed analysis of the Pinochet case and other European investigations of Chilean and Argentine perpetrators. The focus is on the national and international legal aspects of the cases, the transnational coalition of actors that made the investigations possible, and the impact of the Pinochet case in Chile and its demonstration effect elsewhere in Latin America.

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• Sands, Philippe. “After Pinochet: The Role of National Courts.” In From Nuremberg to The Hague: The Future of International Criminal Justice. Edited by Philippe Sands, 68–108. Cambridge, UK: Cambridge University Press, 2003.

  DOI: 10.1017/CBO9780511494086.005Save Citation »Export Citation » Share Citation »

  Adopting a human rights approach from the perspective of victims, the author critically contrasts the Pinochet decision as reflecting a new international law of human rights accountability with the Yerodia decision, which reflects a more traditional view of international law as regulating relations between sovereign states.

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• van der Wilt, Harmen. “Universal Jurisdiction under Attack: An Assessment of African Misgivings toward International Criminal Justice as Administered by Western States.” Journal of International Criminal Justice 9.5 (2011): 1043–1066.

  DOI: 10.1093/jicj/mqr045Save Citation »Export Citation » Share Citation »

  The author largely defends the universal jurisdiction cases brought by European courts against African perpetrators from the criticisms of the African Union, though he acknowledges that Europe’s contribution to postcolonial violence should moderate the application of this practice.

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The International Criminal Court

The International Criminal Court (ICC) is the first permanent international tribunal tasked with the goal of holding individuals criminally accountable for the most serious war crimes and human rights abuses. Its founding Rome Statute was negotiated in 1998 and the court became operational on 1 July 2002, two months after the requisite sixty ratifications. The ICC currently has jurisdiction over genocide, war crimes, and crimes against humanity committed after the Rome Statute came into force, and may have jurisdiction over the crime of aggression in 2017. The court’s jurisdiction depends upon how an investigation is triggered. If the Security Council refers a case, the court can exercise jurisdiction over all members of the international community. Otherwise, jurisdiction requires a connection to state consent, either through ratification of the Rome Statute, which gives the court jurisdiction over crimes committed by nationals of or on the territory of state parties, or by nonparties voluntarily consenting to ICC jurisdiction on an ad hoc basis. Finally, the principle of complementarity means that a case is only admissible before the court if national systems of justice are either unwilling or unable to conduct genuine investigations or trials.