By Graham Dumas, (J.D. Candidate 2011)
Much has been made in recent(ish) literature about the defects of criminal tribunals in post-conflict societies. Multiple authors over the past decade have rightly noted that such fora have dubious positive effects on the transitional justice process when viewed internally: tribunals fail to deter war criminals either because the chances of prosecution are very low, or because offenders act within the context of overwhelming social stress, often believing they are working for the greater good of society; as a measure of retributive justice, tribunals fail because the vast majority of perpetrators go unpunished; trials may upset the delicate balance of peace and conciliation, which in the end is the bedrock of ongoing stability in post-conflict societies. The list is long, and the points are largely valid.
But there is another element to criminal tribunals—their value to international relations. These tribunals, especially on the international level but perhaps also in their hybrid or even domestic form, produce profound international effects. While atrocities are typically described in terms of their internal effects, the legal violations committed in such cases also have profound effects on the international level, diluting custom with contrary state practice in less-severe cases, and promoting regional instability in the most extreme instances. This creates a significant international interest in prosecuting perpetrators that exists apart from whatever domestic or transitional-justice goals may be ascribed to trials. What is more, although international criminal law is typically described in terms of individual liability, when it comes to war crimes and crimes against humanity, the actions on trial are typically the result of a state or organizational policy that goes beyond single actors; the organization that gave rise to these policies is indirectly on trial. While liability does not attach to them, states are risk-averse and vainglorious entities, and tend to react to international indictments of their actions by avoiding (or hiding) such behavior in the future, potentially giving rise to the “acculturation” effect ascribed to international human rights bodies. In other words, at least in theory, criminal tribunals help to shape broader norms and strengthening the rule of law on the international level. Less critically, they may be used to “rehabilitate” rogue states by removing deviant actors from power, allowing such states to reenter the international community on more-or-less good terms. More cynically, tribunals also allow the international community a measure of catharsis for not having acted to prevent the crimes in question.
Because of their contribution to international peace and stability, each of these effects on state behavior is in itself a legitimate goal for the creation of a criminal tribunal. These interests cannot outweigh the goals of peace and stability promoted by transitional justice processes, as the latter inevitably affect individual lives in the subject state, while the former address only the more ephemeral concerns of international law and politics, but there is a strong argument that the international effects of tribunals are just as important. Indeed, by establishing more-definite norms and enforcing the rule of law, criminal tribunals may contribute to a long-term reduction of violence or, at least, greater international involvement in efforts to suppress ongoing violations. In any case, the international relations value of criminal tribunals must be entered into the post-conflict equation by policymakers on all levels.