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Human Rights Quarterly 24.3 (2002) 573-639
Karl Jaspers
In the last decade, there has been a burgeoning interest in the question of how countries recover from episodes of mass violence or gross human rights violations. This interest has focused on the concept of transitional justice, a term we use to describe the processes by which a state seeks to redress the violations of a prior regime. Despite the fact that military and political leaders who ordered or directed mass terror generally have evaded accountability for their deeds, justice—in the form of criminal trials—has been the rallying cry of many who seek to repair the injury individuals and communities have sustained as a result of these heinous acts. As dictatorships and repressive regimes fell in Latin America in the 1980s and 1990s, human rights scholars and advocates pressed states to initiate domestic criminal proceedings against the notorious intellectual authors of mass terror and their faithful subordinates. However, the fragile democracies, weak judiciaries, and amnesty laws made domestic trials difficult to institute.
Further, the character of war has shifted from inter- to intra-state conflict since World War II. These wars reflect intense competition for power and wealth among groups struggling for supremacy. Often characterized as racially, ethnically, or tribally motivated, one commonality among these conflicts is that warring forces target civilian populations, particularly women and children, and cause massive destruction of infrastructure. Mass violence results in the breakdown of societal structures—social and economic institutions, and networks of familial and intimate relationships that provide the foundation for a functioning community. Indiscriminate and episodic violence occurs at random and affects people at a neighborhood level. Even where the violence is centrally planned (as in Bosnia-Herzegovina or Rwanda), the collaboration of paramilitary with military units produces acts of violence and cruelty that are designed not only to kill but to terrorize and destroy the basis of community life. Neighbor-on-neighbor violence is characteristic of this form of aggression as seemingly peaceful community members are swept up in the inexorable process of killing. Thus, human suffering at a communal level is a shared feature of contemporary conflict.
Yet, with the exception of the Nuremberg and Tokyo Tribunals, there have been no international mechanisms for accountability until the recent ad hoc criminal tribunals for the former Yugoslavia and Rwanda. Drawing on the Latin American context, international criminal trials have become a significant response to mass violence, and this trend is strengthened as the International Criminal Court ("ICC") comes closer to a creation.
Thus, the predominant mechanism to respond to mass violence focuses on individual perpetrators of war crimes and other serious violations of international law. Frequently, advocates for this model suggest that international trials may be the single most appropriate response to communal violence. While transitional justice scholars recognize that judicial and truth-seeking mechanisms constitute one important component of a response to mass violence, events of the last decade suggest that many diplomats and human rights advocates conceive of international criminal trials as the centerpiece of social repair. Indeed, "social reconciliation" has become a mandate of these proceedings. While international trials are laudable, assigning accountability for mass atrocities to individuals has certain limitations. This article explores certain of these limitations and offers a new model to understand the contribution of trials to social...
Introduction In the last two decades, the United Nations (UN) Security Council has – almost accidentally – created the rudiments of a system of international criminal justice. This chapter explores the Security Council's development of these foundations of a system of international criminal justice and its unintended consequences. In both investigation and fact-finding, and in its sanctions practice, the Council's approach has moved in the last twenty years from one based on interstate and diplomatic tools towards arrangements that more closely resemble criminal justice tools found at the national level. And in each case, this has led to calls for similar procedural norms that govern criminal justice at the national level – such as due process and the need for an impartial decision-maker – to govern the use of these tools at the international level. The relationship between the Security Council and the development of international criminal justice tools is a surprisingly under-studied question. While there have been numerous examinations in recent years of the Security Council's human rights and rule of law obligations (Clapham 2006; Chesterman 2008, 2009; Flynn 2006; Wood 2006), most of these studies are confined to theoretical examinations of the application of international law to the Council, or its subsidiary organs of the Council (see Goldstone and Smith 2008 and Zappalà 2003 on international criminal tribunals; and see Farrall 2007 on sanctions mechanisms).
Drawing on crystallizing trends in State's practice in respect of amnesty, this book provides a comprehensive legal framework within which grants of amnesty can be reconciled with the duty to prosecute core crimes under international law. © 2007 by Koninklijke Brill NV, Leiden, The Netherlands. All rights reserved.
This book is about amnesties for grave international crimes that are adopted by states in moments of transition or social unrest. The subject is naturally controversial, especially in the age of the International Criminal Court. The goal of this book is to reframe and revitalize the global debate on the subject, and to offer an original framework for resolving amnesty dilemmas when they arise. Most existing literature and jurisprudence on amnesties deal with only a small subset of state practice and sidestep the ambiguity of amnesty's position under international law. This book addresses the ambiguity head on and argues that amnesties of the broadest scope are sometimes defensible when adopted as a last recourse in contexts of mass violence. Drawing on an extensive amnesty database, the book offers detailed guidance on how to ensure that amnesties extend the minimum leniency possible, while imposing the maximum accountability on the beneficiaries.
Why has peace been often unjust, and why has justice been more belligerent than peaceful? Frequently, peace or armistice has served only to put a temporary end to violence, and has left some or all sides feeling dissatisfied. Peace has also been an imposition on the part of the victors of conflict to the end of some notion of order, thus leaving the affected common people to draw their own conclusions without ever being consulted. It is for this reason that justice is often more properly envisioned as the image of a fighter with his sword rather than a balancing scale. In this chapter, Hoffman explores the complexity of how peace and justice might be wedded in international relations, and gives the reader sound starting points for thinking about this conceptual approach.
This book is a guide to the law that applies in the three international criminal tribunals, for the former Yugoslavia, Rwanda and Sierra Leone, set up by the UN during the period 1993 to 2002 to deal with atrocities and human rights abuses committed during conflict in those countries. Building on the work of an earlier generation of war crimes courts, these tribunals have developed a sophisticated body of law concerning the elements of the three international crimes (genocide, crimes against humanity and war crimes), and forms of participation in such crimes, as well as other general principles of international criminal law, procedural matters and sentencing. The legacy of the tribunals will be indispensable as international law moves into a more advanced stage, with the establishment of the International Criminal Court. Their judicial decisions are examined here, as well as the drafting history of their statutes and other contemporary sources. © William A. Schabas 2006 and Cambridge University Press, 2010.
At its forty-fifth session in 1993, the International Law Commission took note of the report of a working group containing a Draft Statute for an International Criminal Tribunal, and transmitted that report to the General Assembly for comment. This is the second stage in a process that began in 1992, when the Commission established a Working Group on an International Criminal Court, which laid down the basic parameters for a draft statute. Its general approach was endorsed by the Commission and subsequently by the General Assembly. The Draft Statute adopted by the working group in 1993 gives effect to that approach, although with a number of refinements and much added detail. The third stage of the process is intended to occur in 1994, when the Commission hopes to adopt a final version of the Draft Statute, taking into account comments made on it at the General Assembly and elsewhere. The purpose of this Note is to outline the provisions of the Draft Statute, in the hope of furthering understanding and discussion of its provisions.
Since entering into force in July 2002, the International Criminal Court (ICC) has emerged as one of the most intriguing models of global governance. This book investigates the challenges facing the ICC, including the dynamics of politicized justice, US opposition, an evolving and flexible institutional design, the juridification of political evil, negative and positive global responsibility, the apparent conflict between peace and justice, and the cosmopolitanization of law. It argues that realpolitik has tested the ICC's capacity in a mostly positive manner, and that the ambivalence between realpolitik and justice constitutes a novel predicament for extending global governance. The arguments of each chapter are framed by an approach designed to assess the nuanced relationship between realpolitik and global justice. The approach - which interweaves four International Relations approaches, rationalism, constructivism, communicative action theory, and moral cosmopolitanism - is guided by the metaphor of the switch levers of train tracks, in which the Prosecutor and Judges serve as the pivotal agents switching the (crisscrossing) tracks of realpolitik and cosmopolitanism. With this visual aid, this book shows just how the ICC has become one of the most fascinating points of intersection between law, politics, and ethics.
Although still in the early stages of their institutional life, die International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) provide a unique empirical basis for evaluating the impact of international criminaljustice on postconflict peace building. The pursuit of justice may be dismissed as a well-intentioned, but futile, ritualistic attempt to restore equilibrium to a moral universe overwhelmed by evil. Moreover, measuring the capacity of punishment to prevent criminal conduct is an elusive undertaking, especially when a society is gripped by widespread habitual violence and an inverted morality has elevated otherwise “deviant” crimes to the highest expression of group loyalty. Yet an appreciation of die determinate causes of such large-scale violence demonstrates that stigmatization of criminal conduct may have far-reaching consequences, promoting postconflict reconciliation and changing die broader rules of international relations and legitimacy.
The Hague tribunal has focused attention on crimes against humanity, but its limited success raises questions about the future of international law.
Professor Orentlicher addresses the problem of whether and on what basis a successor government must prosecute the human rights abuses of a prior regime. Contending that the rule of law requires that the very worst crimes be prosecuted, she argues that principles of international law, customary and conventional, impose a duty to investigate and prosecute the most serious violations. Transitional societies serve the obligation to protect human rights best, not when they prosecute every prior violation, nor when they allow all past violators to go unpunished, but when those most responsible for the past system and the most notorious human-rights violators are brought to justice. The Article concludes with a suggestion that human-rights values may be promoted both through further elaboration of international law standards and through vigorous application of present law.
The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC) took place in Rome at the headquarters of the Food and Agriculture Organization from June 15 to July 17, 1998. The participants numbered 160 states, thirty-three intergovernmental organizations and a coalition of 236 nongovernmental organizations (NGOs). The conference concluded by adopting the Rome Statute of the International Criminal Court by a nonrecorded vote of 120 in favor, 7 against and 21 abstentions. The United States elected to indicate publicly that it had voted against the statute. France, the United Kingdom and the Russian Federation supported the statute.
Atrocities in Darfur had been widely reported in the media for several years, but it was only on September 18, 2004, that the Security Council adopted Resolution 1564, requesting, inter alia, that the United Nations secretary-general rapidly establish an international commission of inquiry in order immediately to investigate reports of violations of international humanitarian law and human rights law in Darfur by
"all parties, to determine also whether or not acts of genocide have occurred, and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable."
On October 8, 2004, the secretary-general reported to the Security Council that he had established a five-member commission of inquiry and reqtiested that it submit its report within three months. The commission submitted a full report of its findings on January 25, 2005. On March 31, 2005, at the conclusion of long and reportedly difficult negotiations, the Security Council issued Resolution 1593. After specifying that the Council was acting under Chapter VII, the resolution stated in its key operative paragraph that the Council "[d]ecides to refer the situation in Darfur since 1 July 2002 to the Prosecutor of the International Criminal Court." This resolution was an important event for the United Nations and, no less, for the as yet untested International Criminal Court (ICC).
Lietzau argues that the US cannot support the International Criminal Court because it fails to recognize its unique responsibilities in the world when issues of international peace and security are involved. The changes sought by the US in the Rome Statute of the International Criminal Court should be implemented not just because US participation is key to an effective, functioning court, but because enacting them promotes the rule of law and is therefore the right thing to do.
One means to enhance the prospects for bringing indicted war criminals to justice is to promote adoption of the principle of universality as the legal basis for prosecutorial jurisdiction.
Despite a high level of mass violence in the post-war years, there have been few prosecutions at the international or national level. Impunity for such crimes is a betrayal of human solidarity with the victims.
Given that some crimes concern the very essence of humanity, international penal jurisdictions raise the moral standard of international relationships. Their intervention as a last resort incites national courts to carry out their competence. Criticized for their cost and slowness, international jurisdictions are also slowed down by the principle of respect of national sovereignty. Moreover, while states have to cooperate with UN courts, they are torn between the will to prove to the public that they are acting, and the necessity not to involve themselves too much in the political scene. It is all the more difficult to try major criminals, as they often keep their status of international spokesmen in the solving of conflicts.
Wayne Sandholtz, Europe, the United States and the International Criminal Court
International relations theories intend to explain why countries subscribe more or less quickly to the statute of the International Criminal Court. However, a rigorous analysis shows that to do so, a country must accept the idea that the international rule is superior to the national rule and furthermore, that judgements by international courts supersede national ones. These criteria explain why the United States and the European countries have different positions in respect to the ICC.
The reconstruction and maintenance of peaceful communities in the aftermath of conflicts is one of the most critical areas of concern for both policymakers and scholars. This article examines explanations of the level of societal peace - the degree of conflict and/or cooperation in a society - and the extent to which internationally provided justice contributes to the maintenance of peaceful societies. In particular, it investigates the efforts of the International Criminal Tribunal for the Former Yugoslavia to provide justice for the people of Bosnia and Herzegovina by analyzing the impact of the arrests and judgments of war criminals on societal peace in Bosnia. Some research suggests that internationally provided justice is critical to peace and reconciliation; some scholars argue that such attempts can do more harm than good by inflaming ethnic violence; while still other research contends that its effects are limited at best. Using event data from the Kansas Event Data System, it is found that the arrests and judgments of war criminals had only a limited effect on improving relations among Bosnia’s ethnic groups. Mostly, the apprehension and judgments of suspected war criminals had no statistically significant effect.
On 12 July 2002, the Security Council adopted Resolution 1422, in which it requested that the International Criminal Court (
This article discusses whether the International Criminal Court (ICC) has lawfully issued and circulated an arrest warrant against the incumbent head of state of Sudan, Omar al Bashir, and whether its request to the states parties to the Rome Statute to arrest and surrender him is in conformity with the provisions of the Statute. In this article, the argument is made that the rules of customary international law on personal immunities of incumbent heads of state do not apply in the case of the exercise of criminal jurisdiction by an international criminal court; therefore they do not bar the exercise of the jurisdiction of the ICC with respect to an incumbent head of state, even if this individual comes from a state not party to the Rome Statute, like Sudan. However, it is one thing to assert that an international criminal court can ‘lawfully’ issue and circulate an arrest warrant against individuals entitled to personal immunity before national courts, and quite another to say that states can ‘lawfully’ disregard the personal immunity of these same individuals, and surrender them to the requesting international court. This article endeavours to demonstrate that while the ICC arrest warrant is a lawful coercive act against an incumbent head of state, the ICC request to states parties to surrender President Al Bashir is contrary to Article 98(1) of the Rome Statute and it is an act ultra vires. States parties are therefore not bound to comply with this request.
While much indignation has been expressed in respect of Sudan's almost total lack of cooperation with the International Criminal
Court (ICC) in the Darfur prosecution, a legal analysis has yet to be conducted. It is submitted that both the procedural
and substantive aspects of the cooperation law pertaining to Sudan are problematic. The ICC Prosecutor has waited too long
with the application for a judicial finding of non-compliance and has thereby unnecessarily jeopardized the enforcement process.
Regarding the substantive cooperation law, to date, neither the Prosecutor nor any other ICC organ has shed light on three
vital issues for the determination that Sudan has violated its cooperation duties. First, what is the applicable cooperation
law? Second, does Security Council Resolution 1593 (2005) amount to an unacceptable discriminatory investigation and prosecution,
invalidating the referral? Third, if one applies the ICC Statute to Sudan, how effective is this instrument in relation to
an uncooperative state non-party?
This article considers whether states are obliged or permitted to arrest Sudanese President Omar al Bashir pursuant to a warrant
of arrest issued by the International Criminal Court (ICC). The article considers the extent to which the ICC Statute removes
immunities which would ordinarily be available to state officials. It is argued that the removal of the immunity by Article
27 of the ICC Statute applies also at the national level, when national authorities act in support of the ICC. The article
examines the application of Article 98 of the ICC Statute and considers the legal nature of Security Council referrals to
the ICC. It is argued that the effect of the Security Council referral is that Sudan is to be regarded as bound by the ICC
Statute and thus by Article 27. Given that the Statute operates in this case not as a treaty but by virtue of being a Security
Council resolution, the removal of immunity operates even with regard to non-parties. However, since any (implicit) removal
of immunity by the Security Council would conflict with customary international law and treaty rules according immunity to
a serving head of state, the article considers the application of Article 103 of the United Nations (UN) Charter in this case.
The International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established by the United Nations in 1993 and 1994 to apprehend and try individuals suspected of committing war crimes including genocide. The crimes that are prosecuted by these courts are the same, and the structure of the tribunals is also similar (indeed, they both share the same appellate court). However, the mandate of the ICTR is much more narrow and is limited both in terms of the period of time under investigation (one calendar year) as well as being limited to crimes that were committed only in Rwanda. Given the mandate and structure of these tribunals, many question their effectiveness. This article examines these tribunals and measures effectiveness by examining not only the number of indictments that have been handed down but the actual number of individuals apprehended. One of the criticisms of both tribunals is that the lack of success in apprehending suspects diminishes the deterrent effect of the tribunals. Based on a case study of the ICTY and the ITCR, we find that the lack of effective apprehension has reduced the deterrent effect of the tribunals and provided one of the primary justifications for the creation of an international criminal court.
The recent activity at the International Criminal Court (ICC) at The Hague concerning the case of President Omar al-Bashir and the crisis in Darfur has set off a firestorm of commentary amongst international lawyers, human rights activists, genocide scholars, experts on Sudan, and journalists, among others. Some argue that the ICC prosecutor, Luis Moreno-Ocampo, was correct in charging al-Bashir with genocide and crimes against humanity; others believe that he had little to no grounds for doing so. Furthermore, while some see the prosecutor’s charges of genocide as questionable, at best, and highly counterproductive, if not dangerous, at worst, others see the genocide charge as positive and a move toward ending impunity for genocide. The same is largely true of the arrest warrant that the ICC has issued for President al-Bashir’s arrest. Dr. Alex de Waal, an Oxford-trained social anthropologist, a fellow of the Global Equity Initiative at Harvard University, and the director of Justice Africa in London; and Dr. Gregory H. Stanton, a Yale University-educated lawyer and University of Chicago-trained cultural anthropologist, professor of Genocide Studies and Prevention at George Mason University, president of Genocide Watch, and immediate past president of the International Association of Genocide Scholars, kindly accepted GSP editor Samuel Totten’s invitation to debate the merits and demerits of the prosecutor’s charges and the ICC’s issuance of the warrant.
The Prosecutor of the International Criminal Court’s (ICC) application for an arrest warrant against Sudan’s President al-Bashir
has brought to the fore the tensions inherent in the distinctive roles of the UN Security Council and the ICC in furthering
peace and justice. The al-Bashir case raises important questions about the legality and policy aspects of a deferral pursuant to Article 16 of the Rome Statute.
The decision by the African Union, prompted by its calls for a deferral, to set up a High-Level Panel on Darfur to recommend
African solutions on how best to achieve justice and reconciliation has added a further regional dimension to the debate.
The developments in the al-Bashir case have potentially far-reaching repercussions for the institutional policies and efficacy of the respective bodies in
pursuing justice and accountability, as well as for the future course of international criminal justice, particularly in Africa.
Human Rights Quarterly 18.2 (1996) 259-285
Are peace and justice irreconcilable or inextricable? The underlying premise of both is that principle should prevail over power. Both seek to put an end to inhumanity and war. Yet, justice concerns itself with rectifying the horrors of the past, while peace looks at the promises of the future. In the history of modern diplomacy, it has been recognized that postconflict peace-building requires "a sense of confidence and well-being among people." In practice, however, the punishment of past human rights abuses has not been a high priority. As a general rule, so-called "realpolitik" considerations have prevailed and the perpetrators of massive atrocities have enjoyed impunity. In particular, political and military leaders who planned and instigated systematic abuses for their own political ends, far from being held accountable, have been granted international legitimacy solely because of their power to sabotage the process of conflict resolution.
A notable exception to this rule is the unprecedented establishment of the International Criminal Tribunal for the Former Yugoslavia (Yugoslav Tribunal or Tribunal) by the UN Security Council. This tribunal, established during an on-going armed conflict, is unique in the annals of international relations. While the case of the former Yugoslavia is yet another manifestation of the perennial dilemma between peace and justice, the Tribunal represents an institutionalization of the demand for justice which, perhaps inadvertently, has become an integral part of the peace process.
Some three years ago, an article appeared in this journal pleading for the punishment of the worst atrocities to have been committed in Europe since the Second World War, claiming that the challenge which it posed was "a critical juncture for the New World Order." The proposition that an international tribunal should be established for this purpose was viewed by some as naïve and idealistic, a mere cri de coeur. Yet, at the time of going to press in February 1993, the Security Council had adopted Resolution 808, expressing its intent to establish such a tribunal, and, by the time of publication in May, the Security Council had adopted the Statute of the Yugoslav Tribunal under Resolution 827. Furthermore, the Yugoslav Tribunal created a precedent for the establishment of a second International Criminal Tribunal for Rwanda in response to the horrific genocide of April 1994, which claimed between 500,000 and 1 million lives in just four months.
The Yugoslav Tribunal was established under Chapter VII of the UN Charter as a measure for the restoration of international peace and security and not for the enforcement of humanitarian law as such. While some viewed this as a great moral victory for human rights, the claim by member states of the Security Council that peace and justice are indivisible was met with skepticism by numerous commentators who viewed the Tribunal as a subterfuge for the failure of the international community to effectively confront the horrors of "ethnic cleansing." These commentators predicted that the Tribunal would never become effective and that the "inherent contradiction" between peace and justice would eventually result in an amnesty for indicted political and military leaders. The prognosis of the skeptics was wrong, and the Dayton Peace Agreement, signed by the parties to the conflict in December 1995, included the Tribunal as an "essential aspect" of peace implementation. Yet, it remains to be seen whether this rhetoric will become reality.
Having traversed the perilous phase of its inception, the Yugoslav Tribunal has now arrived at its hour of truth. The will of the international community to make the Tribunal an effective instrument for postconflict peace-building will be tested in the coming months as the Dayton Peace Agreement is implemented. If, having established the Tribunal, the world fails to punish those who have committed genocide on such a vast scale, the credibility of international law in the post Cold War era will be irreparably damaged, and the prospect of a lasting peace in the volatile Balkan region will be jeopardized. The punishment of war crimes in the former Yugoslavia is indeed "a critical juncture for the New World Order" which calls for historic vision, political courage, and moral leadership.
Human Rights Quarterly 20.4 (1998) 737-816
From its very inception in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) was surrounded by the so-called "peace versus accountability" controversy. The ICTY was established by the UN Security Council as a measure for the restoration of peace and security under Chapter VII of the UN Charter. But commentators of a realist persuasion suggested that the ICTY was actually an impediment, and not a contribution, to reconciliation in the former Yugoslavia. It was argued that indicting political and military leaders such as Radovan Karadzic and Ratko Mladic would undermine the prospects of a peace settlement because they were indispensable to ongoing negotiations, and because they would have no incentive to put an end to the fighting without assurances of immunity or amnesty. An anonymous commentator went so far as to suggest that "[t]housands of people are dead who should have been alive -- because moralists were in quest of the perfect peace. . . . 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."
The prognosis of the skeptics was wrong. The indictment of Karadzic and Mladic and their exclusion from the Dayton talks did not prevent the conclusion of a peace agreement in 1995. Nor was the ICTY sacrificed at the altar of realism as the Dayton Agreement obliged the parties to recognize its jurisdiction. Some attributed this notable achievement to the skillful diplomacy of Richard Holbrooke, Warren Christopher, and other US mediators. Others suggested that "realities on the ground dictated the terms of the peace," and that even without a guarantee of immunity or amnesty, the whims of particular leaders could not obstruct an agreement.
In the immediate post-Dayton phase, the peace versus accountability debate focused on the view that "certain leading Yugoslav protagonists do not genuinely believe in legal justice in the form of cooperation with the Yugoslav Court," that Croat and Serb parties "have stalled with regard to cooperation with international criminal prosecutions," and that it remains to be seen whether international forces would arrest indicted suspects. Evidently, there was an initial reluctance on the part of international forces to become embroiled in a potential quagmire. But eventually, from July 1997 onwards, elements of the Stabilization Force (SFOR) began arresting indicted persons -- both Bosnian Serbs and Bosnian Croats -- in Bosnia-Herzegovina. The momentum generated by the fear of further arrests furthermore resulted in several Bosnian Serb indictees voluntarily surrendering themselves to the ICTY starting in February 1998. In addition, an alliance between Bosnian Serb moderates and the international community has significantly diminished the influence of Karadzic and his cohorts, who face ever-increasing isolation and antagonism in Republica Srpska. To the disbelief of many, the possibility that Karadzic may be arrested by the Bosnian Serb police, or that he may even voluntarily surrender himself, let alone be arrested by international forces, is no longer a mere fantasy. Supplementing these positive developments, the Republic of Croatia -- succumbing to international diplomatic pressures -- also facilitated the "voluntary" surrender of several indictees in October 1997...
It has been widely argued that international criminal justice is necessary for peace and security and that it promotes reconciliation. There have been few attempts to examine these claims with empirical evidence. This article examines the impact of the International Criminal Tribunal for former Yugoslavia on political thinking and behavior in Serbia. It finds that the ICTY has had thus far little direct impact on Serb leaders and political parties, the rule of law, or civic society. What impact the court has had has been indirect, the product of a network of other actors like the United States and the European Union. These network members make reference to the ICTY as they try to manage Balkan politics. This article shows that while internationalized criminal courts may punish certain individuals and develop legal norms and procedures, "judicial shock therapy" is more difficult to achieve. The ICTY has not yet pushed Serbia in a more liberal political direction, which is a foundation for progressive change in the Balkans. [End Page 412]
A significant challenge to the efficacy of international criminal justice in global governance is the view that prosecution of political leaders still in power creates a disincentive to peace and thus prolongs atrocities. While “judicial romantics” are often oblivious to these complexities, the “political realists” have failed to demonstrate that tribunals are in fact an impediment to peace and stability. The impact of the International Criminal Court on three recent situations in Africa suggests that judicial intervention is more likely to help prevent atrocities rather than impede peace, even if arrest warrants cannot be executed.