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The International Relations Value of Criminal Tribunals

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.

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