Crime

INTRODUCTION

The paper sets out to describe and evaluate the significance of philosophical justifications for punishment through forms of internationalized sentencing by drawing upon the jurisprudence of the ad hoc tribunals, and the foundation instruments of the International Criminal Court (ICC). The discussion is conducted within an analytical framework, which recognizes that the phenomenon of punish- ment (global or local) must, as Garland acknowledges, be contextualized by engaging with the social meanings attributed to the complex of ideas, institutions, rules, practices, relationships and discourses, which together constitute the penality of internationalized sentencing. The specific interrogation of the relationships between the modes and purposes for internationalized punishment and the complex set of interrelated processes and institutions which constitute international penality produces a reasoned basis for critiquing the existence and nature of overarching (or underlying) sentencing principles and practices.

Further, the analysis does not simply critically reflect internationalized sentencing philosophy against accommodations and rationalizations of principle which are jurisdictionally focused, using localized sentencing philosophy as a referent for conclusions that suggest that there are some inadequacies with internationalized sentencing philosophy.

Franz von Papen, later the Chancellor of Germany b...

The International Criminal Court in The Hague (ICC...

English: Philippe Kirsch, President of the Interna...

The intention is to explore the underlying rationality of international forms of sentencing against its diverse contexts, both global and local, rather than any paradigmatic model. Such an approach recognizes the possibility that the development of international sentencing is predicated on alternative (or new) paradigms wherein philosophy and principle are either not yet enunciated, or perhaps devalued as important legitimating ideology.

In the wake of widespread atrocities in the former Yugoslavia and Rwanda, ques- tions of justice and the accountability of perpetrators have energized the worlds of scholarship, advocacy, and policy making. It has become virtually impossible to read the daily news without encountering some reference to international or domestic war crime tribunals, truth commissions, or amnesty for perpetrators of atrocities.

In the years after the Nuremberg trials, war crimes were a scholarly preoccupa- tion mainly for international lawyers and historians. More recently, however, schol- arship on atrocities and retribution has also come to occupy an important place within the political science subfields of comparative politics, international relations, and political theory, as well as in philosophy and sociology. International lawyers and human rights advocates have also made significant contributions to the literature on war crime trials and truth commissions. More than in most areas of political science, the linkages between scholars, practitioners, and advocates on questions of justice have had a lasting influence on the evolution of both theory and practice.

In this essay, we survey the literature on international criminal tribunals and retribution. Our primary concern is with scholarship in political science, although we also consider work from the disciplines of law, history, and sociol- ogy and from practitioners and advocates. We find that the normative positions of scholars have heavily influenced the development of literature in this field, in which scholarship, practice, and advocacy are deeply intertwined. Advocates and individuals who have played key roles in the development of international criminal justice institutions, domestic tribunals, and truth commissions have been promi- nent in setting the agenda for scholars. Nonetheless, there is also a growing body of rigorous social science research that attempts to assess empirically--and some- times critically--the claims of advocates and practitioners and to explain changing strategies of justice.

We consider the major theoretical and empirical questions addressed by the liter- ature on international criminal tribunals and retribution. Broadly speaking, we argue that the literature has been dominated by two general orientations, a legal- ism that is premised on a logic of appropriateness and a pragmatism premised on a logic of consequences. After discussing each of these, we consider a third orienta- tion, guided by a logic of emotions, that recognizes the significance of retribution but emphasizes strategies that diverge from the model of legalism. In our survey of each of these orientations, we consider the nexus between scholarship and practice. In our conclusion, we consider how work in international relations and comparative politics can contribute to the study of retribution and international war crimes tribunals.

THE LEGALIST APPROACH

The dominant perspective from which scholarship on international war crime tri- bunals has drawn is legalism. Shklar's landmark book, Legalism, defined this as

"the ethical attitude that holds that moral conduct is to be a matter of rule follow- ing, and moral relationships to consist of duties and rights determined by rules"

(Shklar 1964, p. 1; Teitel 1999). The glue that binds scholars working within this tradition is a shared belief in the importance of promoting universal standards of justice. Underpinning much of the scholarship in this tradition is the assumption that the behavior of actors in international politics is guided by norms that they believe to be appropriate. This "logic of appropriateness" dictates that reducing atrocities is in part a matter of persuading elites and masses to comply with in- ternational humanitarian norms. More specifically, advocates and scholars who write from a legalist perspective stress the need to create tribunals that can enforce international law and, especially, international humanitarian and human rights law. Legalists recognize a complicated relationship between peace and justice but sub- mit that accountability is critical to a lasting peace and that "accountability should never be bartered in a realpolitik fashion in order to arrive at political expedi- ency" (Bassiouni 2002a, p. 41). Unlike pragmatists, legalists oppose the granting of amnesty for international crimes.

Legalist scholars and advocates offer several arguments in favor of trials for war crimes, crimes against humanity, genocide, and torture (Bassiouni 2002a, p. 25). First, they argue that war crime trials that adhere to international standards are the appropriate method for dealing with the perpetrators of mass atrocities and should replace alternatives ranging from vengeance to assassinations or ex- ecutions. Neier argues that punishment fulfills society's duty "to honor and re- deem the suffering of the individual victim" (Orentlicher 1991). Some legalists also argue against alternative strategies of accountability currently in fashion, no- tably truth commissions; they stress that these strategies represent a compromise of justice because they fail to guarantee the legitimate rights of either victims or perpetrators. Truth commissions, legalists argue, are not a substitute for jus- tice (Seils 2002, pp. 775-95). More worrisome from this perspective, the legal void inherent in truth commissions makes them strong candidates for political manipulation.

Second, legalist scholarship has stressed the potential significance of war crime tribunals in both preventing and deterring future conflicts (Malamud-Goti 1990; Roth 1998, 1999; Seils 2002, p. 40). According to Diane Orentlicher, a promi- nent legal scholar, "The fulcrum of the case for criminal punishment is that it is the most effective insurance against future repression" (Orentlicher 1991, p. 2540).

The transfer of knowledge, expertise, and values has also moved in the reverse direction; individuals directly employed by tribunals or truth commissions have later created NGOs or written extensive works on the subject. After serving as Deputy Chair of the South African Truth and Reconciliation Commission, Alex Borraine has joined Priscilla Hayner, a scholar practitioner of truth commissions, to create a New York-based NGO, the International Center for Retribution, dedicated to the study and advocacy of retribution (Borraine 2000, Hayner

2001).

If a shared belief in international criminal justice is what unites legalists, the core concerns that shape legalist scholarship have centered on (a) the appropriate forum for prosecuting war criminals and (b) the implications of war crime tribunals for the further development of international humanitarian law and, more generally, of the international criminal justice system. According to Bassiouni, the legalist position suggests that the choice of the appropriate forum for accountability should depend on four factors: the gravity of the violation, the extent and severity of the victimization, the number of individuals accused, and the degree of command re- sponsibility of those accused. International trials may be more appropriate where the violator regime is still in power, where conflict has not yet been concluded, where the domestic community lacks the will to prosecute, or where one side is significantly less committed to complying with standards for international criminal justice than another. International trials are, however, to be reserved for the pros- ecution of leaders, policy makers, and other senior officials responsible for mass crimes. Practical criteria also enter the equation and often lead legalists to press for an international trial or significant international participation in local trials, as has been the case in discussions concerning a trial of Saddam Hussein. Domestic trials are deemed appropriate only if the domestic judiciary is independent and if the state's judicial infrastructure is functioning well (Bassiouni 2002a, pp. 26-42). Legalists see the ICC as "the most appropriate international mechanism through which the proscriptive norms against genocide, crimes against humanity and war crimes can become more effective instrumental norms ... . An instrumental norm...is characterized by repeated and consistent application." Bassiouni argues that "the public processes of the ICC will reinforce social values and expectations concerning international conduct, and that will in turn contribute to the individual internalization of these values." Through a combination of proscriptive norms and its sanctions capabilities, the ICC will "enhance individual and collective compli-

ance, and thus reduce harmful results" (Bassiouni 2002c, pp. 820-21).

Some international lawyers, however, criticize the design of the ICC as be- ing heavily influenced by power politics. For example, some legalists sought to create a court that could examine past perpetrators of mass atrocities, such as Ethiopia's Haile Mariam Mengistu and Chile's Augusto Pinochet, on the grounds that genocide, war crimes, and crimes against humanity were established in cus- tomary international law long before the 1998 Rome Statute that created the ICC. Moreover, precedents for retroactive trials had been established earlier by the trials of Adolf Eichmann and Klaus Barbie. Thus, activist legalists felt that politics, not legal considerations, had restricted the ICC to a strictly forward-looking jurisdic- tion. In the words of one legal scholar, the NGOs "got their court all right, but it ended up being a court of a curious sort, where superpowers pull the strings

(through the Security Council) yet at the same time (in the case of the US and

China) refuse to support it" (Robertson 1999, pp. 364-67).

Scholars working within the legalist framework have also advocated the pros- ecution of suspected perpetrators of serious crimes under international law in national courts of any state under the theory that certain crimes carry a univer- sal jurisdiction and can therefore be tried in any court. Bassiouni has argued that crimes against humanity, genocide, and war crimes all carry a universal jurisdic- tion. In 2001, a group of scholars and NGOs gathered at Princeton University's Woodrow Wilson School to issue the Princeton Principles on Universal Juris- diction. According to this document, piracy, slavery, war crimes, crimes against peace, crimes against humanity, genocide, and torture are all "serious crimes un- der international law" that can and should be tried by a "competent and ordinary judicial body of any state." Courts may prosecute these crimes under a univer- sal jurisdiction, the Princeton Principles claim, "even if their national legislation does not specifically provide for it" (Bassiouni 2002b, pp. 1003-5). According to Bassiouni, legal scholars who advocate universal jurisdiction consider it the "most effective method to deter and prevent international crimes" because enabling courts anywhere to prosecute these crimes increases the chances that perpetrators will be held accountable (Bassiouni 2002d, p. 998; Joyner 1996, p. 153; Kritz 1996; Meron 1998, p. 260; Morris 1996; Orentlicher 1991, p. 2537).

Apart from debates about appropriate legal forums, legalists have continued to discuss the longer-term effects of trials. They contend that trials, despite short-term failures of justice, may still make a significant contribution to the development of international humanitarian law (Boed 2002, pp. 487-98; Meron 1998). Legalists view norms as cumulative and evolving toward ever more standardized and univer- salized enforcement. Falk (1999, p. 440), for example, sees the "beginnings of an ethos of criminal accountability that contains no exemptions for political leaders and is being implemented at the global level."

However, these findings are debatable. Pragmatists dispute Bass's claim that the international tribunal for the former Yugoslavia has socialized the younger generations of Serbs into supporting war crime trials (Snyder & Vinjamuri 2003, p. 39). Legal processes may also create a narrow view of the past. The Rwanda tribunal looked exclusively at a small segment of the events of 1994 and thus failed to produce a historically deep, comprehensive picture of the causes and meaning of the genocide. Pragmatists' research also suggests that revenge is unlikely to be a highly disruptive, enduring feature of the political landscape. Their critiques of legalism are more fundamental than those of Bass.

THE PRAGMATIST APPROACH

A second approach to issues of retribution is pragmatic. Pragmatists are in- terested in, first, explaining who gets tried for abuses and with what consequences, and second, deriving consequentialist ethical prescriptions from that explanatory account. The power and self-interest of political actors loom large in such accounts. Proponents of legalistic justice who underrate the centrality of these political con- siderations cause more abuses than they prevent, in this view. In the evaluation of outcomes, the consequences of trials for the consolidation of peace and democracy trump the goal of justice per se, since the future prospects for justice depend on the establishment of social peace and unshakeable democratic institutions.

Some, though not all, pragmatists are political realists. Pragmatists incorporate ethical and legal goals in their objectives and analyses, but they take a firmly consequentialist view of how to achieve them. Empirical studies of the actual consequences of justice strategies--or at any rate testable assertions about those consequences--are central to the pragmatists' case.

Regarding motives, Elster begins with impartial reason, distinguishing between backward-looking motives such as retribution and forward-looking motives such as deterrence. He complains that "backward-looking considerations are often con- flated with consequentialist arguments," for example, by confusing the rights of victims with their psychological needs, which is "shaky on moral as well as factual grounds. Morally, it is not clear that the needs of victims can justify a particular treatment of wrongdoers. Many would find repugnant the implication that wrong- doers whose victims happened to have died should, other things being equal, be let off more lightly. Factually, it is not clear that truthfinding not followed by punishment will produce catharsis" (Elster 1998, p. 35).

After discussing self-interest, which dominates Huntington's analysis, Elster moves on to passion. Although he sees anger as a powerful motive for justice, he also argues that passion "spends itself" quickly. Citing the prosecution of Nazi collaborators after World War II, he notes that convictions and sentences became much more lax after an initial period of outrage (Elster 1998, pp. 40-41). If true more generally, this calls into question the common assertion that failures to deliver justice will fester and threaten the social peace.

Overall, Elster's analysis shows that pragmatic, consequentialist, and utilitar- ian approaches to retribution need not be as narrowly focused on political power and bargaining as Huntington's seminal argument. Impartial normative per- suasion, moral judgments, and passions may all affect assessments of what is prudent and possible.

Finally, Goldsmith & Krasner (2003) apply a sophisticated consequentialist, modified realist yardstick to measure the prudence of the ICC and other modalities of justice favored by activists. These authors argue that they come up short. They criticize legalists and idealists both for ignoring power and for overestimating the normative consensus on which law must be based if it is to be legitimate and effective. Like Elster's and Nino's, their stance is engaged with the consequentialist dimensions of normative arguments and is in no way narrowly realist.

A few international lawyers and empirical social scientists influenced by the scholarship of those working within this tradition have also begun to evaluate the consequences of war crime trials. Wedgwood (1998, p. 24), for example, argues that the United States should take the ICC seriously, not for legalistic reasons but to enhance the "power and prestige" of the United States. In a study of war crime trials, truth commissions, and amnesties pursued in civil wars that have ended since

1989, Snyder & Vinjamuri (2003) find that states have tended to follow the dictates of pragmatism while paying lip service to legalist arguments for justice. They also find that throughout the post-Cold War era, powerful states have been effective at pushing the development of the norm in directions that reinforce the authority of states and especially of liberal states. The Bush Administration's emphasis on "mixed" tribunals that emphasize local participation and the complementarity principle of the ICC both underscore this trend (Snyder & Vinjamuri 2003).

A third approach to issues of retribution emphasizes the social psychology of emotions. Scholars and advocates who explore the "logic of emotions" seek, first, to develop an explanatory account of the establishment of social peace in the wake of widespread atrocities, and second, to derive policy prescriptions from that explanatory account. Typically, they argue that eliminating the conditions that breed atrocities depends on achieving an emotional catharsis in the community of victims and an acceptance of blame by the perpetrators. Without an effort to establish a consensus on the truth about past abuses, national reconciliation will be impossible, as resentful groups will continue to use violence to voice their emotions. A successful process of truth telling, they argue, can "promote and protect a culture of human rights" in part by recognizing and vindicating the experiences of victims (van Zyl 2002, pp. 745-60). Truth commissions could serve the goal of "healing for individuals and reconciliation across social divisions" even better, scholars have argued, if they diverged "even more than they usually do from prosecutions" and offered "more extensive therapeutic assistance and relief from threats of prosecution" (Minow 1998, p. 88). For these reasons, proponents of truth commissions stress the importance of encouraging perpetrators to admit responsibility for their crimes, sometimes in exchange for amnesty (Kiss 2000, pp. 216-30; Minow 2000, pp. 235-60).

Advocates of this approach propound a conception of justice that is centered on the survivors and victims, not on retribution against the perpetrator. They argue, moreover, that cathartic truth telling has the benefits of strengthening civil society, compensating victims psychologically and materially, and telling a more coherent narrative than do trials focused narrowly on guilt of individuals (Borraine 2000, Minow 2000). Some advocates also argue that truth commissions can play a piv- otal role in moving the process of institutional reform forward. Van Zyl (2002, pp. 745-60) argues that in South Africa, the truth commission did this by gener- ating widespread public debate about human rights abuse and official culpability, thereby strengthening the hand of those working to promote change and working against bureaucratic inertia that might impede reform.

Some proponents of cathartic truth telling speak in the language of psychother- apy. Scholars have criticized this view, which is popular with some advocates, on empirical grounds (Pupavac 2001, pp. 358-72). A more rationalistic interpreta- tion, examined in a comparative study of the reconciliation processes pursued in international and civil wars, emphasizes the role of justice in signaling a state's commitment to reconcile with its adversary in the aftermath of conflict (Long & Brecke 2003, p. 31). Long & Brecke hypothesize that reconciliation initiatives work when they constitute costly, risky, novel, voluntary, noncontingent, and/or ir- revocable signals of intentions toward the aggrieved party. They find some support for this signaling model, especially in settlements of international conflicts.

For the settlement of civil wars, however, Long & Brecke find more empirical support for an argument grounded in evolutionary biology, which claims that social cohesion hinges on the emotions of reconciliation and the practice of forgiveness. They find that successful civil war settlements tend to go through a trajectory that starts with truth telling and limited justice, culminates in an emotionally salient call for a new relationship between former enemies, and sometimes accomplishes a redefinition of social identities. One problem with their research design, however, is the difficulty of knowing whether the emotional theater of reconciliation is causally central to establishing peace or whether it is mainly window dressing that makes political bargaining and amnesties more palatable to the public. Their brief, descriptive case studies establish the minimal plausibility of the explanation based on emotion and forgiveness, but they do not probe hard for alternative interpretations. (Gibson 2003, Ch. 4).

A final limitation of Gibson's study is that it addresses reconciliation only from the viewpoint of individual attitudes. He acknowledges that "not all questions of reconciliation can be understood in terms of the attributes of citizens. Groups are important, institutions are important, and some individuals (elites) are more important than others" (Gibson 2003, Ch. 1). Indeed, South Africa's truth telling and reconciliation, such as it was, could happen only because of the favorable political context created by political deals and coalition politics of the kind that pragmatists study.

CONCLUSIONS

The literature on international war crime tribunals and transitional justice has been heavily influenced by the normative views of human rights advocates and international lawyers. In particular, the nexus between advocacy, practice, and scholarship has shaped the scholarship that has come out of the legalist tradition. Individuals working in this mode have moved between roles as scholars, advocates, and practitioners.

In principle, there should be no objection to scholars doing policy-relevant work in this or any other field. Indeed, the relevance of the legalists' ideas to compelling moral and political concerns explains why they have attracted so much attention. Sometimes, however, the commitment to advocacy has come at the expense of progress in empirical research. Some of the writings of these advocate- scholars have treated the benefits of war crime trials as an assumption rather than an empirical proposition to be tested rigorously.

Increasingly, however, scholars taking all three approaches--legalist, pragma- tist, and emotional psychology--have begun to undertake systematic empirical studies of the factors that have driven states' choices of different strategies of justice and the effectiveness of these strategies in achieving the goals that their proponents claim for them. This presents a new opportunity for mainstreaming the study of war crime tribunals and retribution in political science. Because of their broader understanding of processes of democracy building and demo- cratic consolidation, liberalization, and transitions from authoritarianism during which decisions are made about justice, students of comparative politics are well placed to analyze the implications of these strategies of justice for broader social and political trends. Similarly, international relations scholars have a wealth of knowledge about the factors that shape the successes or failures of postwar recon- struction efforts and nation building. Strategies of justice are one component of these frameworks for reconstituting political order in the aftermath of war. This knowledge will allow political scientists to design more careful studies to assess the influence of justice on political order and on democracy.

Already, a number of political scientists have begun to develop hypotheses grounded in careful empirical investigation, rather than simply moral conviction, concerning the effects of war crime trials and truth commissions on peace and on the consolidation of democracy. Some have even begun to develop criteria for pursuing justice based on empirical analysis that move beyond the divisions between legalists and pragmatists. Ultimately, these studies are likely to be the most fruitful both for the practitioners and for scholarship.

On the basis of Dignan and Cavadino's attempts to construct a typology of victim-based contexts for evaluating criminal justice, the current limited concep- tualizations afforded by international criminal tribunals for rehabilitative and restorative justice themes is undoubtedly circumscribed by the tribunals' adherence to a traditional retributive model. In order to progress beyond this philosophical and institutional limitation would require both a philosophical reorientation which favours the moral utility of achieving reparative justice through reconciliation, and further, the reintegration and empowerment of victims by adopting a more communitarian model. The latter, however, is largely envisaged as dependant on institutional change, whereas the traditional court process101 is seen as an inappropri- ate locus for reintegrative ceremonies and popular forms of justice. Further, as Zedner suggests, prevailing notions of reparative justice and retribution tend to 'ignore the structural imperatives of deprivation and disadvantage under which many offenders act' whilst more developed conceptualizations of reparative justice might be capable of addressing communitarian ideals of social justice. Zedner advocates a vision of reparative justice predicated on the utility of all criminal justice practices as sharing responsibility for social inclusion and control and the equal distribution and enforcement of rights.

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