Ruti G. Teitel, “Transitional Justice Genealogy,”Harvard Human Rights Journal 16 (2003), pp. 69–94.
Ellen L. Lutz and Caitlin Reiger, eds., Prosecuting Heads of State (Cambridge: Cambridge University Press, 2009).
Notably, even key advocacy organizations promoting international justice have issued important reports evaluating it on the basis of its contributions to other values. Several recent reports reflect this trend. See, e.g., most notably, Human Rights Watch, “Selling Justice Short: Why Accountability Matters for Peace,” July 7, 2009; and Diane F. Orentlicher, “Shrinking the Space for Denial: The Impact of the ICTY in Serbia,” Open Society Justice Initiative, May 2008. There are also numerous academic studies evaluating transitional justice, and the 2010 Special Issue of the International Journal of Transitional Justice, “Transitional Justice on Trial: Evaluating Its Impact,” will be devoted to evaluations of its impact.
The American Jewish Conference argued for the “moral obligation” to prosecute those who had committed crimes, but also suggested this would serve as “a warning against future attempts to instigate or commit similar crimes.”“Statement on Punishment of War Criminals,” Submitted by the American Jewish Conference to the Secretary of State, Cordell Hull, National Archives, RG 107, August 25, 1944. See also Arieh Kochavi, Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (Chapel Hill: University of North Carolina Press, 1998).
Annual Report of the ICTY, UN Doc. A/49/342, S/1994/1007, August 29, 1994, cited in Orentlicher, “Shrinking the Space for Denial,” p. 15.
Lubanga (ICC-01/04-01/06-8), Decision on the Prosecutor's Application for a Warrant of Arrest, February 10, 2006.
Arguments that advance international justice on the basis that it can bring sustained peace, especially those that emphasize its role in building the rule of law, bear some relationship to arguments made by scholars of the “liberal peace.” The emphasis, however, is different: whereas liberal peace scholars emphasize peace between liberal states, arguments that advance international justice as a means of developing the rule of law and peace make more general claims about its effects (they are universal, and not simply limited to a community of liberal states).
Most notably, reports such as Human Rights Watch, “Selling Justice Short,” emphasize the effects of justice on the peace process and renewed cycles of violence; by contrast, one of the most influential post–cold war statements about accountability stressed the legal duty to prosecute. See Diane Orentlicher, “Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,”Yale Law Journal 100 (June 1991), p. 2537ff.; Payam Akhavan, “Are International Criminal Tribunals a Disincentive to Peace? Reconciling Judicial Romanticism with Political Realism,”Human Rights Quarterly 31, no. 3 (August 2009); Oskar N. T. Thomas, James Ron, and Roland Paris, “The Effects of Transitional Justice Mechanisms: A Summary of Empirical Research Findings and Implications for Analysts and Practitioners” (working paper, Centre for International Policy Studies, University of Ottawa, 2008); Hunjoon Kim and Kathryn Sikkink, “Explaining the Deterrence Effects of Human Rights Trials,” available at www.iilj.org/courses/documents/Sikkink-Kim.HC2009Oct21.pdf, p. 2; Leigh Payne, Tricia Olsen, and Andrew Reiter, Engaging the Past to Safeguard the Future: Transitional Justice in Comparative Perspective (Washington, D.C.: United States Institute of Peace Press, forthcoming); and Jack Snyder and Leslie Vinjamuri, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice,”International Security 28, no. 3 (Winter 2003/2004), pp. 5–44.
A third category of rationales that stress the effects of justice draws on the notion of restorative justice. Although many theorists of restorative justice are solely concerned with restoring relations between victims and perpetrators, this type of explanation can also be used to suggest the positive effects of justice on state building. Establishing guilt and innocence may be crucial not as a means to punish perpetrators and assuage victims, but instead as a mechanism designed to reintegrate these two communities and thereby lay a foundation for reconciliation and restoration. International justice is a distant cousin of other nonlegal strategies preferred by those who seek to promote restorative justice. Mechanisms designed to bring victims and perpetrators together through truth telling have been at the center of this approach to justice. See Daniel Philpott, “An Ethic of Political Reconciliation,”Ethics & International Affairs, vol. 23, no. 4 (Winter 2009), pp. 389–409.
An Italian NGO established in 1993 used this name and became a key advocate of international criminal justice. See www.npwj.org.
Payam Akhavan, “Beyond Impunity: Can International Criminal Justice Prevent Future Atrocities?”American Journal of International Law 95, no. 1 (2001), pp. 7–31.
Mark Drumbl develops a critique of this assumption that international criminal justice can prevent collective violence in Mark A. Drumbl, Atrocity, Punishment, and International Law (Cambridge: Cambridge University Press, 2007).
See, e.g., Payam Akhavan, “Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United Nations War Crimes Tribunal,”Human Rights Quarterly 20, no. 4 (1998), pp. 737–816; and Richard Ned Lebow, Coercion, Cooperation, and Ethics in International Relations (New York: CRC Press, 2007), p. 188.
ICTY Judge Wolfgang Schomburg argued strongly on behalf of the long-term deterrent effect of contemporary tribunals. See Orentlicher, “Shrinking the Space for Denial,” p. 94n34.
This claim has underpinned much of the logic behind arguments in support of recent ICC indictments. It also guided the logic of those who argued that the International Criminal Tribunal for the former Yugoslavia would reduce violence and contribute to state building within the former Yugoslavia and especially in Kosovo. Indeed, Human Rights Watch argued in its study “Under Orders: War Crimes in Kosovo” (Human Rights Watch, 2001), that the violence in Kosovo was muted because of the work of the Tribunal.
This argument is made, e.g., in Priscilla Hayner, “Negotiating Justice: Guidelines for Mediators,” Centre for Humanitarian Dialogue and International Center for Transitional Justice, February 2009, p.17.
See Kenneth Roth, “Why Indictment Matters”; available at www.hrw.org/en/features/why-indictment-matters (accessed March 15, 2010).
For a critical perspective on this and related issues, see Drumbl, Atrocity, Punishment, and International Law.
For contrasting perspectives, see, e.g., Kenneth A. Rodman, “Darfur and the Limits of Legal Deterrence,”Human Rights Quarterly 30, no. 3 (August 2008), pp. 529–60; Kathryn Sikkink and Carrie Booth Walling, “The Impact of Human Rights Trials in Latin America,”Journal of Peace Research 44, no. 4 (2007), pp. 427–45; and Hunjoon Kim and Kathryn Sikkink, “Explaining the Deterrence Effect of Human Rights Prosecutions,”International Studies Quarterly (forthcoming, 2010).
The effort to build institutions is complicated by the pursuit of justice during conflict, making it seem that the logic of this argument is more naturally conducive to the pursuit of international justice in the aftermath of conflict than during ongoing violence. For an example of this type of argument, see Kathryn Sikkink, “Contra Trial Skepticism,” SSRC Blogs, “Making Sense of Sudan,” posted July 16, 2008; available at www.ssrc.org/blogs/sudan/2008/07/16/contra-trial-skepticism (accessed March 8, 2009).
Similarly, Beth Simmons argues that treaties foster greater compliance with human rights norms because they serve as a resource for civil society that enables citizens to more easily mobilize and pressure their governments to comply. See Beth A. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics (Cambridge: Cambridge University Press, 2009).
Remarks by Juan Mendez, “Fifteen Years of International Justice: Assessing Accomplishments, Failures and Missed Opportunities—Lessons Learned,” Wilton Park, April 14–15, 2008; available at www.ictj.org/en/news/features/1673.html.
For example, Richard Wilson argued that the language of deterrence is simply adopted to sell tribunals as a policy, not because advocates believe that deterrence works. Remarks on Roundtable on Human Rights, International Studies Association, New Orleans, Louisiana, February 2010.
Orentlicher, “Shrinking the Space for Denial.”
Many of the debates, e.g., about the ICC and Sudan, focus on the consequences of the ICC's role there. For a summary of some of these debates, see Alex de Waal, “Sudan and the International Criminal Court: A Guide to the Controversy,” July 14, 2008; available at www.opendemocracy.net/article/sudan-and-the-international-criminal-court-a-guide-to-the-controversy. Another example of the type of debate that has surrounded the ICC is contained in Nicholas Waddell and Phil Clark, eds., Courting Conflict? Justice, Peace and the ICC in Africa (London: Royal African Society, 2008).
Gillian Sharp, National Public Radio, May 27, 1999, quoted in “Will Indictment Derail Peace Process?” UN Wire, May 27, 1999; available at www.unwire.org/unwire/19990527/2855_story.asp (accessed February 25, 2010). This publication reviews the range of views that surfaced in response to this controversial indictment.
Statement by Justice Louise Arbour, Prosecutor ICTY, The Hague, May 27, 1999, JL/PIU/404-E; available at www.un.org/icty/pressreal/p404-e.htm (accessed March 1, 2009).
See Christine Bell, On the Law of Peace: Peace Agreements and the Lex Pacificatoria (New York: Oxford University Press, 2008).
“Warrant Issued for Sudan's Leader,” BBC, March 4, 2009; available at news.bbc.co.uk/1/hi/7923102.stm; Bashir also argued, “You will find in all the world's countries that militants who take up arms against a government are classified as terrorists. Even those who resist occupation in Iraq, Afghanistan and Palestine are classified today as terrorists, except in Sudan. When some people take up arms, it's the government that's guilty”; quoted in “ICC Prosecutor Makes Case Against Sudan's President,” PBS NewsHour, September 8, 2009; available at www.pbs.org/newshour/bb/africa/july-dec09/icc_09-08.html; on bias in favor of the government of Uganda, see Tim Raby, “Advocacy, the International Criminal Court, and the Conflict in Northern Uganda,”Humanitarian Exchange Magazine, Humanitarian Practice Network, Issue 36 (December 2006).
For one example of the types of claims being made in response to the ICC's issuing of an arrest warrant against President Omar al-Bashir of Sudan, see “Bashir Attacks West Over Warrant,” Al Jazeera English, March 5, 2009; available at english.aljazeera.net/news/africa/2009/03/2009351781685923.html (accessed March 6, 2009).
Orentlicher, “Shrinking the Space for Denial.”
For an excellent review of much of the research that attempts to evaluate the effects of transitional justice, see Thomas, Ron, and Paris, “The Effects of Transitional Justice Mechanisms.” For a recent study of the factors associated with transitional justice, see Laurel E. Fletcher, Harvey M. Weinstein, and Jamie Rowen, “Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective,”Human Rights Quarterly 31, no. 1 (2009), pp. 163–220.
Human Rights Watch, “Selling Justice Short.”
Orentlicher, “Shrinking the Space for Denial,” p. 16.
Sikkink and Walling, “The Impact of Human Rights Trials in Latin America,” pp. 427–45; Kim and Sikkink, “Explaining the Deterrence Effect of Human Rights Prosecutions”; Tricia Olsen, Leigh Payne, and Andrew G. Reiter, Transitional Justice in Balance: Comparing Processes, Weighing Efficacy (Washington, D.C.: United States Institute of Peace Press, forthcoming); Tricia Olsen, Leigh Payne, and Andrew G. Reiter, “The Justice Balance: When Transitional Justice Improves Human Rights and Democracy,”Human Rights Quarterly 32, no. 4 (forthcoming); Helga Malmin Binningsbø, Jon Elster & Scott Gates, “Civil War and Transitional Justice, 1946–2003: A Dataset” (paper presented to the workshop “Transitional Justice in the Settlement of Conflicts and Kidnapping,” Bogotá, Colombia, October 18–19, 2005); available at www.svt.ntnu.no/iss/helga.binningsbo/card/Binningsbo_Elster_Gates131005.pdf (accessed January 31, 2010); and Tove Grete Lie, Helga Malmin Binningsbø & Scott Gates, “Post-Conflict Justice and Sustainable Peace” (Post-conflict Transitions Working Paper No. 5, World Bank Policy Research Working Paper 4191, 2007).
Thomas, Ron, and Paris, “The Effects of Transitional Justice Mechanisms.” Others note that since 1945, wars that have been followed by sustained peace have more often than not achieved these results in the absence of accountability. Leslie Vinjamuri, “Is Accountability Necessary for Sustained Peace?” (presented at the conference “Pursuing Justice in Ongoing Conflict: Examining the Challenges,” Wilton Park, December 2008).
Helena Cobban, Amnesty After Atrocity: Healing Nations after Genocide and War Crimes (Boulder, Colo.: Paradigm Publishers, 2007). The absence of any reference to accountability has characterized many wars that were followed by sustained periods of peace. Since 1990, international justice has more often been associated with sustained peace when it was pursued at least two years after a war ended. Vinjamuri, “Is Accountability Necessary?”
Thomas, Ron, and Paris, “The Effects of Transitional Justice Mechanisms.”
Leslie Vinjamuri and Aaron Boesenecker, Peace Agreements and Accountability: Mapping Trends from 1980 to 2006 (Geneva: Centre for Humanitarian Dialogue, 2007).
Tricia D. Olsen, Leigh A. Payne, and Andrew G. Reiter, “Transitional Justice in the World, 1970–2007: Insights from a New Dataset,”Journal of Peace Research 47, no. 6 (forthcoming). On trends in amnesties, see Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Portland, Ore.: Hart Publishing, 2008). See also Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge: Cambridge University Press, 2009).
Vinjamuri, “Is Accountability Necessary?”
For an example of this type of argument by skeptics, see Andrew Natsios, “A Disaster in the Making,” SSRC Blogs, “Making Sense of Sudan”; available at www.ssrc.org/blogs/sudan/2008/07/12/a-disaster-in-the-making (accessed March 8, 2009).
Bronwyn Anne Leebaw, “The Irreconcilable Goals of Transitional Justice,”Human Rights Quarterly 30, no. 1 (2008), pp. 95–118.
Vinjamuri and Boesenecker, Peace Agreements and Accountability.
See Maria Avello, “European Efforts in Transitional Justice,” Fundacion Para Las Relaciones Internacionales Y El Dialogo Exterior (FRIDE) 58 (Working Paper, June 2008). For an example of efforts by NGOs to ensure that development agencies embrace transitional justice, see International Center for Transitional Justice, “Donor Strategies for Transitional Justice: Taking Stock and Moving Forward,” October 15–16, 2007; available at www.ictj.org/images/content/8/0/808.pdf (accessed March 6, 2009).
On the normalization of accountability, see Teitel, “Transitional Justice Genealogy.”