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Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?

  • Payam Akhavan (a1) (a2)
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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.

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1 Momčilo Krajišnik was the president of the Bosnian Serb Assembly during the 1992-1995 war, the Bosnian Serb signatory of the 1996 Dayton Peace Agreement, and the Serb member of the Bosnia-Herzegovina collective presidency during the post-Dayton period in 1996-1998.

2 For a discussion of Karadžić ‘s removal from public office, see Akhavan, Payam, The Yugoslav Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond, 18 Hum. Rts. Q. 259, 27879 (1996) [hereinafter Akhavan, Dayton Agreement]; see also Akhavan, Payam, Justice in The Hague, Peace in the Former Yugoslavia ? A Commentary on the United Nations War Crimes Tribunal, 20 Hum. Rts. Q. 737, 81011 (1998) [hereinafter Akhavan, Justice].

3 SFOR has also arrested, inter alia, General Stanislav Galić, commander of the forces responsible for the siege of Sarajevo; General Radoslav Krstić, commander of the forces responsible for the mass execution of several thousand men at Srebrenica; and General Momir Talić, chief of staff of the Bosnian Serb army and commander of forces responsible for the “ethnic cleansing” of some 60,000 non-Serbs in the Prijedor region. Talić was initially arrested in Vienna by Austrian police while attending a seminar sponsored by the Organization for Security and Co-operation in Europe.

4 For some early skeptical views on the potential success of the ICTY, see, for example, ‘Amato, Anthony D., Peace vs. Accountability in Bosnia, 88 AJIL 500 (1994); Forsythe, David P., Politics and the International Tribunal for the Former Yugoslavia, 5 Crim. L. F. 401 (1994). For the present author’s contrary views, see Akhavan, Dayton Agreement, supra note 2; Akhavan, Justice, supra note 2.

5 The Rwandan government, for example, expressed concern before the Security Council in 199,4 that the ICTR would “disperse its energy by prosecuting crimes that come under the jurisdiction of internal tribunals” such as “crimes of plunder, corporal punishment or the intention to commit such crimes, while relegating to a secondary level the genocide that brought about its establishment.” Rwanda also complained that “certain countries, which need not be named,” had proposed candidates for judges and participated in their election despite the fact that they “took a very active part in the civil war in Rwanda/’ UN Doc. S/PV.3453, at 15 (1994).

6 See Prosecutor v. Kambanda, judgment and Sentence, No. ICTR-97-23-S (Sept 4, 1998), reprinted in 37 ILM 1411 (1998).

7 The question of amnesty as an incentive for a peace agreement was not so much at issue in the case of Rwanda since the Rwandese Patriotic Front had routed the government forces responsible for the 1994 genocide.

8 For the ICTY, see SC Res. 827, UN SCOR, 48th Sess., Res. & Dec, at 29, UN Doc. S/INF/49 (1993), reprinted in 32 ILM 1203 (1993); for the ICTR, see SC Res. 955, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994).

9 Theodor Meron has noted that “the gravest atrocity, the Serb massacre of thousands of Muslims living in and around Srebrenica, happened in July 1995, when the tribunal was fully operational and Karadzic and Mladic had both been indicted.” Theodor Meron, Answering for War Crimes: Lessons from the Balkans, Foreign AFF., Jan.-Feb. 1997, at 2, 6.

10 For an elaboration of the author’s views on the “instrumentalist” and “primordialist” views of ethnic conflict in the former Yugoslavia, see Akhavan, Justice, supra note 2, at 752-65; and for Rwanda, see Akhavan, Payam, Justice and Reconciliation in the Great Lakes Region of Africa: The Contribution of the International Criminal Tribunal for Rwanda, 7 Duke J. Comp. & Int’l L. 325, 32843 (1997).

11 Zimmermann, Warren, Origins of A Catastrophe 210 (1996).

12 Prunier, Gérard, The Rwanda Crisis, History of a Genocide 224 (1995).

13 Michael Reisman, W., Legal Responses to Genocide and Other Massive Violations of Human Rights, 59 Law & Contemp. Probs. 75, 77 (1996).

14 Muna, Bernard, The ICTR Must Achieve Justice for Rwandans, 13 Am. U. Int’l L. Rev. 1480, 1481 (1998).

15 Ehrlich, Isaac, Crime, Punishment, and the Market for Offenses, 10 J. Econ. Persp. 43, 43 (1996).

16 Although the terms are sometimes used interchangeably, the more pliable term “prevention” is used here instead of the more limited “deterrence” to avoid confusion. According to Johannes Andenaes, a basic distinction is made between the effects of punishment on the man being punished—individual prevention or special prevention—and the effects of punishment upon the members of society in general—general prevention. The characteristics of special prevention are termed “deterrence,” “reformation” and “incapacitation . . . .” General prevention, on the other hand, may be described as the restraining influences emanating from the criminal law and the legal machinery.

Johannes Andenaes, The General Preventive Effects of Punishment, 114 U. Pa. L. Rev. 949, 949 (1966).

17 Id. at 951. Andenaes distinguishes this broader moral concept of general prevention from special and general “deterrence” as follows:

The effect of the criminal law and its enforcement may be mere deterrence. Because of the hazards involved, a person who contemplates a punishable offense might not act. But it is not correct to regard general prevention and deterrence as one and the same thing. The concept of general prevention also includes the moral or sociopedagogical influence of punishment. The “messages” sent by law and the legal processes contain factual information about what would be risked by disobedience, but they also contain proclamations specifying that it is wrong to disobey.

Id. at 950. In other words, general prevention consists of both deterrence through fear of punishment in society and the moral influence of punishment as an expression of social disapproval.

18 Id. at 951.

19 Krajisnik’s Party Says His Arrest Represents “Brutal Showdown” BBC, Apr. 6,2000, available m LEXIS, News Group File, Most Recent Two Years.

20 Serb War Crimes Suspect Seized by NATO Troops, Times (London), Apr. 4, 2000.

21 Serbian Opposition: Krajisnik’s Arrest in Bosnia Will Strengthen Extremists, Beta news agency, Belgrade, Apr. 3, 2000, trans, by BBC, Apr. 3, 2000.

22 BETA Views Outcome of B-H Elections, Foreign Broadcast Information Service [hereinafter FBIS], Doc. EUP20000413000039 (Apr. 13, 2000) (quoting Beta, Belgrade).

23 Nationalist Leader Seselj Urges Arrest of NATO Officers to Free Krajisnik, BBC, Apr. 8, 2000(trans. of Radio Belgrade, Apr. 6, 2000).

24 Bosnian Serb Assembly Fails to Condemn Krajisnik’s Arrest, FBIS Doc. EUP20000530000361 (May 30,2000) (trans, of ONASA news agency, Sarajevo).

25 Bosnian Serb Premier Denies Any Responsibility for Krajisnik’s Arrest, SRNA news agency, Bijeljina, Apr. 3, 2000, trans, by BBC, Apr. 3, 2000.

26 Bosnian Serb Leader Dodik Visits Hague, Discusses ‘Reinforcing Cooperation’ with War Crimes Tribunal, FBIS Doc. EUP20000529000287 (May 29, 2000) (quoting Agence France-Presse, May 29, 2000).

27 Serb Republic Prime Minister Dodik Views Situation in Balkans, FBIS Doc. EUP20000723000125 (July 20, 2000) (trans, of Rijeka Novi List, July 20, 2000).

28 Bosnian Serb Vice-President Says Karadzic Lost Influence over Party, Beta, Belgrade, Apr. 1, 2000, trans, by BBC, Apr. 3,2000.

29 SDS Calls for Return of Refugees, Reconciliation, FBIS Doc. EUP20000710000344 (July 10, 2000) (quoting Agence France-Presse, July 10, 2000).

30 Id.

31 BETA Views Outcome of B-H Elections, supra note 22.

32 Id.

33 The poll is referred to, without citation, in Boyd, Charles G., Making Bosnia Work, Foreign Aff. Jan. l998, at 42, 51.

34 Milosevic Said to Be Threatening Families of Hague Defendants from Bosnia, BBC, May 6,2000, available in LEXIS, News Group File, Most Recent Two Years.

35 See Watson, Paul, Milosevic Clamps down on Opposition Media; Yugoslavia: Elite Police Storm TV and Radio Stations, Shutter Leading Independent Paper, L.A. Times, May 18, 2000, at 6 .

36 BETA Views Serbian Protest Rallies, FBIS Doc. FTS19991014000473 (Oct. 14,1999) (quoting Beta, Belgrade, Oct. 13, 1999).

37 Id.

38 Id.

39 Id.

40 Kostunica Views Opposition, Elections, Milosevic, FBIS Doc. EUP20000417000289 (Apr. 17, 2000) (trans, of Nin (Belgrade), Apr. 13, 2000).

41 Bosnian Serb Premier Says Serbia Entering Prolonged Dark Age, BBC, May 29, 2000 (quoting Radio B2-92, Belgrade), available in LEXIS, News Group File, Most Recent Two Years.

42 Id

43 SZP’s Batic Wants Serbian People, State to Try Milosevic, FBIS Doc. EUP20000402000094 (Apr. 2, 2000) (trans, of Beta, Belgrade, Apr. 2, 2000).

44 Milosevic’s Party Moderates Its Tone: Born-Again Socialists Stress Democracy and Founding Ideals, int’l Herald Trib., Oct. 27, 2000, at 5.

45 Id.

46 Kostunica Views Opposition, Elections, Milosevic, supra note 40.

47 SZP’s Batic Wants Serbian People, State to Try Milosevic, supra note 43.

48 Kouchner: Milosevic Must Be Brought to Justice, Press Release UNMIK/PR/ 381, Oct. 5, 2000, obtainable from <http://www.un.org/peace/kosovo/press/>.

49 Id. Kouchner pointed out that the “families of these victims are still suffering today as are the families of thousands of missing persons from Kosovo” and that “it was his duty as the highest ranking UN official in Kosovo to directly reassure the people of Kosovo of the UN’s commitment to bring to justice all suspected perpetrators of violations of international humanitarian law.”

50 See, e.g., Tudjman Rejects ‘Unprincipled’ Pressures on Country, FBIS Doc. FTS19970923000130 (Sept. 23, 1997) (quoting HINA, Zagreb, Sept. 22, 1997).

51 Croatian Party Leaders View Possible Hague Extraditions, FBIS Doc. FTS19990127000523 (Jan. 27, 1999) (trans, of Vecernji List (Zagreb),Jan. 20, 1999, at5).

52 ONASA Interviews New Croatian President, FBIS Doc. EUP20000208000342 (Feb. 8, 2000) (quoting ONASA, Sarajevo, Internet version, Feb. 8, 2000).

53 Id.

54 Croatian President Calk for Rapprochement with Serbs and End to Sanctions, BBC, Apr. 5,2000 (quoting Der Spiegel, Apr. 3, 2000, at 180).

55 Id.

56 Kirka, Danica, Serb Refugees Hope Croatian Elections Will Mean a Return Home, AP, Feb. 14, 2000 , available in WL, Allnewsplus.

57 Croatian Defense Forces Associations Announce Rally for 30 May, Doc. FBIS-EEU-2000-0517 (May 17, 2000).

58 Former Ruling Party Demands Minister Quit over War Crimes Comments, BBC, May 18, 2000, available in LEXIS, News Group File, Most Recent Two Years. These were described as “blatant lies and libels . . . bordering on an attempt to criminalize the HDZ.” Id.

59 Vezic, Goran, Croatian Extremists on the March: Croatia’s Social and Economic Crisis Is Fueling an Ultra-Nationalist Revival, IWPR’s [Institute on War and Peace Reporting] Balkan Crisis Report, May 16, 2000.

60 Mesic on Blaskic, SZUP, New Government, FBIS Doc. EUP20000315000458 (Mar. 15, 2000) (trans, of Jutarnji List (Zagreb), Mar. 11, 2000, at 28).

61 Id.

62 Survey Shows ‘Anti-Hague Atmosphere’ Increasing in Croatia, FBIS Doc. EUP20000823000244 (Aug. 19, 2000) (trans, of Jutarnji List (Zagreb), Aug. 19, 2000, at31).

63 Id.

64 Id.

65 The Media in Yugoslavia on the ICTY May 15-21, Beta, May 22, 2000 (citing BLIC, May 18, 2000).

66 See, e.g., UN Doc. S/PV.3453, at 14 (1994).

67 Id.

68 See, e.g., Letter from the Permanent Representative of Rwanda Addressed to the President of the Security Council (Sept. 28, 1994), UN Doc. S/1994/1115.

69 UN Doc. S/PV.3453, supra note 66, at 14.

70 Id. It recognized that those “who were taught that it was acceptable to kill as long as the victim was from a different ethnic group or from an opposition party, cannot arrive at national reconciliation unless they learn new values.” Id.

71 Rwanda: Human Rights Developments, in Human Rights Watch, World Report 1999, obtainable from <http://www.hrw.org/hrw/pubweb/Webcat-84.htm#P1339_175409> [hereinafter HRW 1999 Report].

72 Id.

73 Id.

74 Gourevitch, Philip, Forsaken, Congo Seems Less a Nation Than a Battlefield for Countless African Armies, New Yorker, Sept. 25, 2000, at 53 , 60.

75 Rwanda: Human Rights Developments, in Human Rights Watch, World Report 2000, obtainable from <http://www.hrw.org/hrw/pubweb/Webcat-84.htm#P1339_175409> [hereinafter HRW 2000 Report].

76 Id.

77 Id

78 See Alvarez, José E., Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Int’l L. 365, 462 (1999).

79 Louise Arbour Propose l’Organisation de Procè à Kigali, Hirondelle news agency, Aug. 7, 1999 (trans, by author), obtainable from <http://www.hirondelle.org>.

80 Alvarez, supra note 78, at 466.

81 HRW 1999 Report, supra note 71.

82 Rudasingwa, Theogene, The Rwanda Tribunal and Its Relationship to National Trials in Rwanda, 13 Am. U. Int’l L. Rev. 1469, 148990 (1998).

83 HRW 1999 Report, supra note 71.

84 Id.

85 HRW 2000 Report, supra note 75.

86 HRW 1999 Report, supra note 71.

87 Alvarez, supra note 78, at 365.

88 Rudasingwa, supra note 82, at 1488.

89 See Wedgwood, Ruth, National Courts and the Prosecution of War Crimes, in Substantive and Procedural Aspects of International Criminal Law: The Experience of International and National Courts 393, 401 (Kirk McDonald, G. & Swaak-Goldman, Olivia eds., 2000); Maison, Rafaëlle, Les Premiers Cos d’apptication des dispositions pénales des Conventions de Genève par les juridictions internes, 6 Eur.J. Int’l L. 260, 270 (1995); Stern, Brigitte, La Compétence universelle en France: le cas des crimes commis en ex-Yougoslavie et au Rwanda, 40 Ger. Y.B. Int’l L. 280 (1997); Wolfrum, Rüdiger, The Decentralized Prosecution of International Offenses Through National Courts, in War Crimes in International Law 124 (Dinstein, Yoram & Tabory, Mala eds., 1996).

90 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Yugo.), Preliminary Objections, 1996 ICJ Rep. 595 (July 11).

91 Arbour, Louise & Bergsmo, Morten, Conspicuous Absence of Jurisdictional Overreach, in Reflections on the International Criminal Court 129, 139 (von Hebel, Herman A. M., Lammers, Johan G., & Schukkings, Jolien eds., 1999).

92 See, e.g., Murphy, Sean D., Contemporary Practice of the United States, 94 AJIL 369 (2000).

93 Letter Dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations Addressed to the President of the Security Council, UN Doc. S/2000/786, annex (Aug. 10, 2000).

94 SC Res. 1315, preambular para. 5 (Aug. 14, 2000), obtainable from <http://www.un.org/documents>.

95 For the Report of the International Commission of Inquiry on East Timor to the Secretary-General, see Identical Letters Dated 31 January 2000 from the Secretary-General Addressed to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, UN Doc. A/54/ 726-S/2000/59, annex (Jan. 31, 2000).

96 Id. at 29, para. 123.

97 Id. at 35-36, para. 153.

98 Wahid Reaffirms Commitment to East Timor Prosecution, FBIS Doc. SEP20000216000033 (Feb. 16, 2000) (trans, of Jakarta Detik, Internet version, Feb. 16, 2000).

99 Indonesia Finds Generals Involved in Timor Violence, FBIS Doc. FTS20000201000387 (Feb. 1, 2000) (trans, of NRC Handelsblad (Rotterdam), Jan. 31, 2000, at 1).

100 Indonesian Military ET Findings Must be Proven in Court;’ FBIS Doc. FTS20000201000054 (Feb. 1, 2000) (quoting Jakarta Post, Internet version, Feb. 1, 2000).

101 Id.

102 Chandrasekaran, Rajiv, 19 Accused of East Timor Atrocities: But Top Generals Are Missing from Indonesia’s List of Suspects, Int’l Herald Trib., Sept. 2-3, 2000, at 4 .

103 Id.

104 UK Daily Views Indonesian President’s Risky Business, FBIS Doc. FTS20000201000753 (Feb. 1, 2000) (quoting editorial, Times (London), Internet version, Feb. 1, 2000).

105 Id.

106 Id.

107 President Wahid: Security Situation in Aceh Improving, FBIS Doc. SEP20000317000003 (Mar. 17, 2000) (quoting Jakarta Post, Internet version, Mar. 17, 2000).

108 See Chandrasekaran, Rajiv & Rianom, Aryanti, 24 Soldiers Are Convicted of Killing Aceh Villagers, Int’l Herald Trib., May 18, 2000, at 1 .

109 See Richardson, Michael, Wahid Seeks Inquiry into 1960s Killings in Indonesia, Int’l Herald Trib., Mar. 30, 2000, at 1 .

110 Wippman, David, Atrocities, Deterrence, and the Limits of International Justice, 23 Fordham Int’l L. J. 473, 488 (1999).

* The views expressed herein are those of the author in his personal capacity and do not necessarily represent the views of the United Nations. The author wishes to express his gratitude to Ameer Gopalani for his research assistance.

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