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Grave violations of human rights have become increasingly criminalized in recent decades. Chances that perpetrators will be charged in criminal courts, including international criminal courts, have grown. These developments culminated in the creation of the first permanent international criminal court, the International Criminal Court in 2002. This research paper first provides a summary of the history of criminal justice intervention against perpetrators of human rights crimes. A brief discussion follows concerning the societal conditions that advanced this trend. A further section examines challenges of criminal justice intervention against human rights violators and issues of debate: the building of functioning international criminal courts, their institutional incentives and constraints, the scope of their jurisdiction, the question of individual versus collective liability, tension between political reason versus legal procedure, and finally actual chances to effectively reduce grave human rights violations. Selective examples from a growing and at times impressive new body of literature are cited.
Historic Roots And Fundamentals
Human rights, those civil, political, social and economic rights that are granted humans independently of their citizenship, are codified in the Universal Declaration of Human Rights (UDHR). The United Nations General Assembly passed this declaration on December 10th, 1948, in response to the atrocities committed by Nazi Germany. Human rights are associated with the right and obligation of the international community to intervene against offenses by national governments. They thus weaken the principle of national sovereignty, established by the Peace Treaty of Westphalia that ended the Thirty Years War in 1648. While most violations of human rights do not constitute crimes and while the principle of national sovereignty is still prominent, considerable change has occurred. It has been argued that many previous centuries can compete with the 20th with regard to the level of human rights abuses, but that the twentieth century is distinct as serious attempts have been undertaken to intervene in atrocities, to slow or prevent them (Minow 1998). Some even diagnose a “justice cascade” (Sikkink 2011).
The process began during the late nineteenth century when humanitarian law, or the law of wars, was first codified in a series of international conventions, known as the Geneva and Hague Conventions. The conventions were drafted by multinational conferences that initially sought to establish rules regarding the treatment of wounded soldiers and of prisoners of war. In 1949, rules were added against the deportation of individuals or groups, the taking of hostages, torture, collective punishment, “outrages upon personal dignity,” the imposition of judicial sentences without due process, and discriminatory treatment. The Geneva Convention has garnered broad support across the world’s nations as is indicated by the large number of 180 signatories.
While these conventions set binding international standards for situations of international conflict, they continue to respect national sovereignty. Yet, two subsequent Protocols of 1977 marked a weakening of sovereignty. Protocol I extended the protections of the Hague/Geneva Conventions to persons involved in wars of “self-determination,” typically liberation wars which former colonies fought against colonial powers. Thus, violations of humanitarian principles could no longer be considered internal affairs of colonizers. Going one step further, Protocol II extended humanitarian protections to persons involved in severe civil conflicts, prohibiting collective punishment, torture, hostage taking, acts of terrorism, slavery, humiliating and degrading treatment, rape, and enforced prostitution. These Protocols have also found broad support, albeit weaker due to their more interventionist nature, with 150 and 145 signatories respectively.
Humanitarian law provided a foundation for judicial intervention. The International Military Tribunal in Nuremberg (IMT) against leading Nazis drew legitimacy from the conventions, as did the Tokyo trials against Japanese war criminals. Yet, the history of Nazism had shown that even the treatment of domestic populations should not remain unchecked by the international community. Unbearable in itself, mistreatment at home may prepare yet more horrendous offenses against foreign peoples. In Nazi Germany, for example, the gassing of mentally retarded German children and adults served as a training ground for the SS’s work on the “final solution” against Europe’s Jews and other groups (Schmidt in Heberer and Matth€aus 2008). The idea was thus born to extend rights that many countries guaranteed their own citizens (civil rights) to all humans (human rights), independently of their citizenship, and to certify these rights in a covenant, the UDHR, and a series of international treaties. Sovereign states would now be bound by a new and growing system of international law that was not limited to times of armed conflict.
In reaction to the Nazi crimes, The Convention on the Prevention and Punishment of the Crime of Genocide came into force on January 12th, 1951. Article 2 of the Convention defines genocide as: “.. .any of the following acts, committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, such as: Killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.” Genocide, “whether committed in time of peace or in time of war, is a crime under international law which… [the contracting parties] undertake to prevent and to punish” (Article 1). Threatened with punishment are “constitutionally responsible rulers, public officials or private individuals” (Article 4).
Other conventions sought to protect the human rights of women (1979), children (1990) and indigenous peoples (1991), but only the Convention against Torture and Other Cruel, Inhumane and Degrading Treatment or Punishment (1987) applies standards of criminal liability, like the genocide convention and humanitarian law before it and the Rome Statute of 1998 that established the ICC.
Despite such progress, a recent review of the history of international human rights law and its enforcement cautions us. Enforcement of the growing number of international treatises tended to be weak at least through the 1980s (Sikkink 2011). Treaty bodies created by the UN General Assembly, such as the Human Rights Council, focus on states’ legal accountability. They monitor violations and work toward solutions with accused governments, but with few enforcement powers. New regional courts, such as the European Court of Human Rights, the African Court of Human Rights, and the Inter-American Court of Human Rights also apply a state accountability model. Treaty Bodies and courts ask states to provide remedies when violations are recorded, including changes in policies and/or reparation payments to individuals victimized by past policies.
This situation partially changed during the 1990s. A new model of criminal liability began to supplement state accountability, even if pre-ceded by the London Agreement through which the victorious powers of World War II had created the IMT. The IMT had marked the serious beginning of the construction of international criminal courts as central institutions in the fight against grave humanitarian law and human rights violations. The occupying powers had arrested and the IMT had charged the defendants with crimes against the peace (conducting illegal, aggressive war), war crimes and crimes against humanity. Yet, as the trial focused on offenses committed during the war it shied away from challenging the notion of national sovereignty. Pre-war offenses of the totalitarian Nazi regime against German citizens were not covered. Eventually, 12 defendants were sentenced to death and executed, 7 received prison terms, and 3 were acquitted (on related trials, including the famous “doctors’” and “lawyers’ trials” see Heberer and Matth€aus 2008).
After a long hiatus caused by the Cold War between the two super powers, only the breakdown of the Soviet Union allowed for new initiatives. Different from Nuremberg or Tokyo, these new courts did not grow out of military victory. Instead, the UN Security Council established both the ICTY in 1993 and the ICTR in 1994; and an international agreement, the Rome Statute of 1998 created the ICC, the first permanent international criminal court. The Rome Statute entered into force in 2002 when 60 countries had ratified. As of 2008 there were only 108 ratifications, with several powerful members of the international community opposed, including the US. The creation of new legal institutions corresponds with a quadrupling of trial activity, at the domestic and international levels, in only two decades from the early 1980s to the early part of the twenty-first century (Sikkink 2011). In addition to international courts, a diversity of other types are involved.
Hybrid courts, emerging from agreements between the UN and national governments, are staffed with groups of domestic and international judges applying domestic and international law. Recent examples include courts in Sierra Leone, East Timor, Kosovo, and Cambodia, the latter a much delayed response to the genocidal mass killings of the 1970s under the Khmer Rouge regime. Such trials, typically conducted in the countries where the crimes were perpetrated, allow for easier access to victims and witnesses than international courts, while international participation may reduce the risk of partisan abuses of trials as revenge mechanisms by post-transition regimes – or, in the alternative, obstruction by past perpetrators who managed to hold on to political power under the new regime. Foreign courts became famous through the Jerusalem trial against Adolf Eichmann in 1961. More recently, under the new doctrine of universal jurisdiction, a Spanish judge charged Chilean General Augusto Pinochet and (unsuccessfully) requested his extradition from the UK Cases tried in foreign courts remain rare though, while domestic courts are a prominent part of international justice when they apply international humanitarian and human rights law, often in combination with domestic law. Importantly, domestic courts now operate under the shadow of the ICC. Its mere existence is likely to encourage domestic enforcement, as most countries prefer cases to be handled at the domestic level (Sikkink 2011; Roht-Arriaza 2005). Crucial here is the doctrine of complementarity that governs the ICC. The court can only take up cases if domestic courts are unable or unwilling to do so. Domestic courts, however, tend to try top leaders only after regime changes (e.g., Argentina, Chile, Iraq), while low-level defendants are targeted in cases of regime continuity. Examples are the cases of My Lai and the abuse and torture committed in the Abu Ghraib or Guanta´namo Bay prisons. In addition, penalties in these cases tend to be either mild or greatly reduced after initial sentencing.
In short, the growing openness toward international intervention into domestic affairs comprises three processes:
- A universalization or globalization of human rights law, its institutionalization in international doctrines and organizations, including courts of law and its application by many nations in domestic courts
- An individualization of human rights law, allowing for grievances to be directed not just against governments or entire countries, but also against individuals acting on behalf of these countries (and filed by individuals) and
- A partial criminalization of human rights law, supplementing compensatory mechanisms with penal responses
Societal And Global Conditions Of Change
Recent research explores structural and cultural conditions for these trends (Savelsberg 2010). On the cultural side scholars such as Emile Durkheim and Erving Goffman, in their classic works, alert us to the status of an individual’s dignity in modern society. While it sets limits to the intensity and types of punishment, it simultaneously encourages the punishment of killers, including dictators who radically disregard the “sacred” status of individuals in modern society. Such reactions are intensified by the growing sensitivity to physical violence that accompanied the pacification of domestic life to which Norbert Elias’s classical arguments about the civilizing process alert us.
In light of such cultural trends, the outrages of the Holocaust further advanced global consensus regarding the dignity of individuals. Through symbolic extension of the Shoah and psychological identification with the victims, members of a world audience became traumatized by an experience that they themselves had not shared (Alexander in Alexander et al. 2004). In these terms, the punishment of leading Nazi perpetrators by the IMT and by subsequent trials was performative. It provided, consistent with a semiotic model of social life, images, symbols, totems, myths, stories, and it thus contributed to the formation of a collective memory of evil to which we shall return below.
Once it was established as universal evil, the Holocaust served “analogical bridging” to reinterpret later events in light of this earlier trauma (Alexander in Alexander et al. 2004: 245–249). Examples are the treatment of minorities in the United States or the victimization of millions in the Balkan wars during the 1990s. In the latter case, analogical bridging occurred famously through the image of an emaciated Bosnian concentration camp inmate behind barbed wire, published on the front pages of most international newspapers and magazines. Thus building a bridge from the Holocaust to the cruelties committed in Bosnia advanced diplomatic and military intervention and the establishment of the ICTY, with great potential at contributing to new international criminal law (Hagan 2003).
Structural changes also contribute to the growth of international criminal justice against human rights perpetrators. Especially shifts in the balance of power at the international and national levels opened the way to the prosecution of national leaders. Globalization with its internationalization of economic ties and modern technologies of communication and transportation created a new dependency of nation states, and their leaders, on the international community. This shift is supported by the establishment of international governmental organizations (IO) such as the UN and its many sub-organizations and by the multiplication of International Non-Governmental Organizations (INGOs), representing a form of civil society at the global level. Five times as many organizations worked on human rights in the 1990s, than in the 1950s. Specifically, Transnational Advocacy Networks (TANs) prove effective, especially when they raise issues involving bodily harm to vulnerable populations; when responsibility can be attached to specific actors; when networks are dense, involving many actors and providing reliable information flow; and finally when target actors show material or normative vulnerabilities (Keck and Sikkink 1998).
While structural changes in the balance of power have opened up opportunities for international criminal justice intervention, continuing imbalances of power still leave their mark. Powerful countries such as China, Russia and the United States, and their rulers, have been spared criminal justice intervention when they offended against human rights law. Further, for the most part, only formerly powerful leaders have been indicted, and their numbers are few (e.g., Charles Taylor and Saddam Hussein; but see Slobodan Milosˇevic´ and Omar al-Bashir). Mostly, when current officials are prosecuted, typically in situations of regime stability, they tend to be low ranking officers, internationally and nationally.
Challenges And Debates
Criminal justice responses to grave human rights violations face several challenges and controversies, some of which are specific to international interventions while others apply at all levels. A short section is devoted to each of these themes.
Functioning Of Courts, Forms Of Capital, And Competition: The Case Of The ICTY
Formal Security Council decisions or international treaties are only first and necessary steps toward creating international courts. Their actual functioning depends on multiple social actors and forces. Sociologist-criminologist John Hagan (2003) identifies, for the ICTY, a multitude of innovative actors in the judicial field, all with different strengths (or forms of capital) and exposure to various national legal traditions. These actors compete against and cooperate with others inside the court and in the world of diplomacy and international politics to make the court succeed. Two brief examples must suffice.
After the UN Security Council had established the ICTY, it appointed Richard Goldstone as chief prosecutor, a South African judge with impeccable human rights credentials but little criminal law experience. Goldstone first used his international contacts and continued media presence, to secure a $30 Million budget for the court. Later he gained, through his diplomatic contacts, access to CIA aerial images of mass graves around Srebrenica, allowing ICTY investigators to advance their massive exhumation project. Still, after 2 years and 70 indictments, only 6 suspects were in custody, and the court resorted to legally problematic hearings against defendants who were not in the custody of the court (“in absentia hearings”). Change came only after a new prosecutor with different forms of capital took over from Goldstone. Canadian jurist Louise Arbour’s substantial expertise in criminal law then became crucial in transforming the “virtual tribunal” with its questionable “in absentia” hearings into a “real time tribunal” (Hagan 2003: 93–131). Arbour linked traditional tools of criminal law with the UN mandate by introducing sealed (secret) indictments and surprise arrests through NATO military forces. These strategies resulted in a substantial increase in the number of defendants in custody. In short, Security Council resolutions alone do not determine the success of a newly founded international criminal court. Innovative strategies, involving cooperating and competing legal actors, but also actors from the worlds of diplomacy and military, from national governments, IGOs and NGOs, unfold in the face of uncertain outcomes before a new type of international criminal legal practice can be established.
Incentives To Intervene: The Case Of The ICC
The organization of a court and the institutional rules under which it operates determine the incentives to aggressively engage in the prosecution of grave human rights violations. The ICC, for example, determined by the Rome Statute, consists of several courts or “Chambers” with a total of 18 judges, each with non-renewable 9-year terms (see Schabas 2007). Trial and appeals chambers write opinions and thus specify future international criminal law. The prosecutor is also selected for one non-renewable 9-year term through an anonymous vote of the member states. Cases can be referred to the ICC prosecutor by individual citizens of member states, by states against one of their citizens, and by the UN Security Council. The latter, for example, referred the Darfur case to the ICC. In contrast, state parties referred cases against Uganda, the Central African Republic and the Democratic Republic of Congo to the ICC.
In light of these and additional conditions, the court will not be as activist and punitive as American criminal courts have been in recent decades. First, due to the principle of complementarity the ICC can only get involved with Security Council referral or if domestic courts are unable or unwilling to prosecute. Second, given the still relatively weak institutionalization of civil society at the world level, public moral outrage is less likely to promote prosecution than at the national level. Third, prosecutors and judges, holding tenured and non-renewable positions, are less likely to be responsive to moral outrage. Yet, public mobilization may advance Security Council actions as it did in the case of Darfur. Fourth, given the strong role of nation states among the court’s constituents, the ICC’s legal and procedural principles will often compete with diplomatic or military actors and outcome-oriented reasoning. Finally, massive power-asymmetries between states are likely to constrain the court’s agenda. The United States, for example, has entered “Bilateral Immunity Agreements” with some 100 governments that agree not to extradite American citizens to the ICC, often in exchange for international aid.
Scope Of Jurisdiction: More On The ICC
The ICC’s jurisdiction includes only four crimes: genocide, crimes against humanity, aggression, and war crimes, committed after April 2002 in states that have ratified the Rome Statute. Some actors would like to substantially expand jurisdiction of the ICC or other criminal courts to include violations of all rights guaranteed by the UDHR. Scholar-activists have suggested, for example, that child poverty in a wealthy country could be conceived of as an offense against the Convention for the Rights of the Child. This should, in the eyes of some, result in sanctions against responsible states and in the expansion of individual criminal liability to those whose policies had advanced these violations of international human rights standards.
Such far-reaching demands are being challenged by others, even those who in principle support expanded international criminal law (Hagan and Levi 2007). They argue that that tort law may in many cases be at least as effective as criminal law, with lower burdens of proof; charging countries and their leaders in criminal court may isolate these countries from the international community, polarizing conflict, and resulting in a loss of international influence; and that criminal law is ill-suited to address larger structural and cultural forces that contribute to broader human rights violations. Finally, human rights problems such as large-scale homelessness among children may result from national policies enacted by legitimate governments and backed by majorities of the electorate. Who then is to be charged?
Individual Versus Collective Liability
Grave human rights violations, while always involving individual agency, are typically embedded in complex organizational settings, government agencies, police and military units, and actors at different levels of hierarchy. These complexities pose challenges to prosecution. In response, criminal law has developed the concept of conspiracy, rooted in American jurisprudence. The crime of conspiracy is defined as an agreement between two or more individuals, entered into for the purpose of committing an unlawful act. It is justified as a separate crime as it is conceived of as a threat to the public in itself. Conspiracy also encourages and eases additional criminal behavior. Law seeks to deter (by increasing the cost of membership) and to destabilize (by undermining trust among co-conspirators) (see Meierhenrich 2006). “Conspiracy” makes its way into international criminal law under different names.
Article 9 of the London Charter, for example, makes membership in a “criminal organization” punishable. The American chief prosecutor, Justice Robert Jackson, argued that criminal organizations will serve as carriers of criminal plans from one generation to the next if not delegitimized by criminal law. Later, at the ICTY, crimes that must be expected in the context of a “joint criminal enterprise” constitute individual criminal liability even if charged individuals are not themselves engaged in the execution of the crime. For instance, involvement in the planning of ethnic cleansing campaigns to be conducted by armed groups should result in charges of homicide and war crimes as such campaigns must be expected to result in the killing of civilians.
And yet, “conspiracy,” “criminal organizations,” and “joint criminal enterprise,” innovative attempts at resolving the legal dilemma of individual guilt in the context of collective action, face grave challenges. They raise the specter of guilt by association, thereby endangering the nullum crimen sine lege principle, and they thus create doubts regarding the rigor and impartiality of international criminal law.
An alternative option of collective punishment, following the US Sentencing Guidelines’ model of Corporate Probation, would face challenges as well. Court orders are hard to enforce if a hostile regime refuses to obey, a problem long faced by UN Treaty Bodies. Further, in cases of grave atrocities, a negotiated settlement with the perpetrating collectivities such as the Iraqi Republican Guards or the Nazi SS, is often inconceivable and may undermine the legitimacy of the court. Dissolution of corporate entities and punishment of their individual members are typically called for. Collective punishment also disregards considerable shades of culpability. It may open collectivities up to the lure of oppositional cultures, if it is directed against large populations or entire countries. Post-WWI German history taught lessons, and paths chosen after the victory over Nazi Germany took these lessons seriously.
Formal Procedure Versus Political Reasoning
Given the high stakes of trials against serious violations of human rights, practical consequences of a court’s rulings are considerable. Justice Jackson had argued that failure to legally denounce the organizations involved in the Nazi crimes would open the doors to a recurrence of massive genocide in the next generation, and that humankind would not survive a repeat of such horrors. And yet, some legal philosophers argue that formal principles, a “just desert” orientation and a focus on rights of the accused must trump policy in international criminal justice. Even the IMT has come under liberal attack for its breach of formal rules, despite general agreement regarding its relative success in producing justice. Landsman (2005), for example, critiques the IMT’s breach of liberal legal principles, such as the admission of hearsay evidence. Such philosophical arguments are backed by the conviction that only strictly due process-oriented international criminal justice can earn legitimacy and that only a legitimate system can prevail in the long term.
Effectiveness Of Criminal Court Intervention Against Human Rights Perpetrators
The effectiveness of criminal justice intervention in preventing grave human rights violations is hotly debated. Critics challenge, for example, the rise of universal jurisdiction, the power of domestic courts to try foreign citizens, summarized in the Princeton Principles of Universal Jurisdiction and justified by the recognition that human rights violations are offenses to all humanity. Domestic courts, they argue, may have little sense of the harm their prosecutions may cause in the affected foreign country. Amnesties, truth commissions and other transitional justice programs, and thus successful transitions to peace and democracy may be at risk.
The ICC and other international courts are further targets of critique. They are said to suppress the consideration of power, necessary to assess the consequences of intervention and to balance legal accountability with political costs. Critics argue that filing charges against Serb president Milosˇevic´ by the prosecutors of the ICTY, for example, made it harder for NATO to reach a deal with Serbia at the time, thereby extending war and suffering in the Balkans in the summer of 1999. In 2011, critics challenged the ICC for its decision to charge Sudanese President al-Bashir with genocide, at a time where his role in stabilizing relations with the newly independent South Sudan may be crucial. In general, the concern is that perpetrators will not be willing to negotiate and cease power if they are threatened by criminal trials (see Snyder and Vinjamuri 2003/2004).
Challengers of these skeptics include political scientist Kathryn Sikkink (2011), who offers an impressive new data set with information on domestic truth commissions and domestic, foreign and international trials for a 26-year period (1979–2004), covering 192 countries and territories. Sikkink finds that transitional justice does not typically lead to the strengthening of old forces; the severity of offences and the likelihood of trials are highly correlated (decisions for trials are thus not made lightly); and, importantly, countries with more human rights trials show greater improvements of later human rights records. Such positive outcome was further improved where trials were coupled with truth commissions. More importantly, and contrary to skeptics’ point of view, not a single case in Latin America shows that holding a trial contributed to violent conflict and dislodged the transition.
If the correlation between the use of transitional justice and improved human rights records shown by Sikkink is not just due to third factors (e.g., a past rule of law regime in the affected country), but if it does indeed constitute a causal relationship, the question remains how this relationship can be explained. Theoretical efforts toward understanding the link between trials and outcomes require us to open up the “black box” between intervention and human rights. Two processes may be at work. One is a deterrence mechanism, consistent with rational choice ideas; the other is a cultural mechanism, a thorough de-legitimization of gross human rights abuses, possibly to the point where they no longer appear as options in the decision trees of rational actors.
Rational choice ideas and deterrence research have a long tradition in criminology. One common conclusion of many studies is that the certainty of punishment is most likely to have a deterrent effect, more than its severity. Whitecollar crime literature suggests that deterrence is most likely to work for the powerful, as they are expected to act rationally. Sikkink’s (2011) explanation of the positive correlation between transitional justice mechanisms and human rights records is consistent with this mode of thought: the next generation of military officers will remember the shaming their predecessors experienced as a result of criminal sanctions or truth commission reports and be reluctant to breach human rights. But what are the conditions under which past perpetration and subsequent sanctions are being remembered? Sophisticated rational choice arguments take learning about the past seriously, as such learning will affect what costs and benefits decision makers take into consideration.
Here a new line of academic work comes to play that examines the effects of trials and other mechanisms on collective memory (Osiel 1997; Savelsberg and King 2011). This work builds on classic sociological ideas and on arguments made by politicians and jurists such as President Franklin Roosevelt and Justice Robert Jackson. Judge Samuel Rosenman, Roosevelt’s confidant reports about the president: “He was determined that the question of Hitler’s guilt – and the guilt of his gangsters – must not be left open to future debate. The whole nauseating matter should be spread out on a permanent record under oath by witnesses and with all the written documents” (after Landsman 2005: 6). From a Durkheimian perspective, Osiel perceives the court room drama in cases about mass atrocities as a “‘theatre of ideas,’ where large questions of collective memory and even national identity are engaged” (Osiel 1997: 3).
A new idea is thus added to the traditional rationales for criminal trials and sanctions such as retribution, deterrence or incapacitation: a history writing function, the construction of a collective memory of past evil that, some argue, will reduce the likelihood of future offending. Collective memory is here understood as knowledge about the past that is shared, mutually acknowledged and reinforced by a collectivity. Its shape determines how a formerly charismatic leader, after the “degradation ceremony” of a criminal trial, will be remembered.
The hope invested in criminal trials’ contribution to history writing and to the formation of collective memory, however, must be cautioned. Trials follow a particular logic. Evidentiary rules differ, for example, from those used by historians. Further, trials target individuals, not the social processes and cultural patterns sociologists might focus on when constructing the past. Actions trials address are further limited by legal classification systems; producers of inflammatory rhetoric may have played central roles, but they will typically not be criminally liable. Finally, following the binary logic of criminal law, the defendant is guilty or not guilty, a gross simplification by psychological standards.
A budding literature has thus begun to critically explore the consequences of trials for collective memory. Giesen (in Alexander et al. 2004), for example, argues that German criminal trials against former Nazis served a “decoupling” function. In light of such trials, the German people could take the position of the third party, while individual guilt was assigned to a few in the court of law. As individual perpetrators were ritually expelled, the majority of Germans were offered a chance to avoid acceptance of collective guilt. Osiel (1997) applies this insight to French history. President Charles De Gaulle urged that post-World War II trials were directed against a few elite actors of the Vichy regime that had collaborated with the Nazis. Here too decoupling succeeded. By attaching guilt to some individuals through legal rituals, memory could be cleansed of the collaboration of many, and attention could be redirected from questions about their past to the reconstruction of France following war and occupation.
The French case indicates further that trials after grave human rights violations, especially after regime change and military defeat, can only be understood in their political context. Just like the legal process was affected by political will in the French case, so were the Allied trials against German perpetrators (Landsman 2005: 111ff for the IMT). The Allies decided to focus on just a few major Nazi perpetrators, as prosecuting all who had become guilty might have destabilized the country and its budding democracy. This focus on few perpetrators, however, helped shape a view of history that saw the majority of Germans as victims of a small elite, thus repressing the memory of support and collaboration many had provided (Marrus in Heberer and Matth€aus 2008).
Cases against high-level perpetrators have in common that trials follow conquest and/or regime change. Trials may construct very different collective memories though when past evil is processed in the context of regime continuity (Savelsberg and King 2011). The United States trial against perpetrators of My Lai, for example, where criminal guilt was attributed only to one low-ranked military, has contributed to the exculpation, not just of broader segments of the population, but also of political and military leadership in public memory. Research shows, for example, that most American history textbooks do not mention the My Lai case. Those that do, tend to present the massacre in line with the outcome of the trial, focusing on the one convict, Lt. Calley, but silencing the role played by higher ranks and their attempted cover up of the massacre. Such processing of past atrocities may have advanced uncritical attitudes toward the institution of the military and contributed to a willingness by American military in current conflicts to offend against norms of humanitarian law. The judicial handling of recent torture and illegal imprisonment cases is likely to further advance such attitudes.
Despite such misgivings, criminal justice mechanisms may still affect collective memory in ways that decreases the likelihood of future evil. First, the de-legitimization of past perpetrators may be crucial in transitions. Second, the selectivity of legal logic must not be overrated. After all, legal trials initiate the collection of evidence. While not all may be admitted in the court of law, such evidence nevertheless may be available to future historians, or it may be directly communicated to the public through mass media. Hagan (2003) documents the diversity of extralegal expertise of forensic scientists, victim workers, journalists and social scientists, mobilized by the ICTY to uncover forensic and interview-based empirical evidence of the atrocities committed during the Balkan wars. News of recently opened mass graves and liberated concentration camps reached a broad public through journalistic reports, independent of the success of translating these materials into evidence in the court’s proceedings. Investigatory evidence may also be used in future historical documentations, independently of its legal status at the trial (Bass 2000).
In short, through deterrence and collective memory functions, criminal trials may help transitions and prevent repetitions of past evil. Optimism, however, must be tempered by insights into the selectivity and inaccuracy of trial-based memories, by the focus on “small fish” in the absence of regime transitions and by transition problems that trials may cause in some contexts.
Alternatives, Supplements And Precursors To Criminal Justice Intervention
In light of the shortcomings of criminal courts, a balance of principles may be more realistically achieved through a mix of institutions, including UN Treaty bodies, creative new models, truth commission, reparation programs, vetting proceedings, apologies, commemorations and memorials, or amnesties. A few comments on four of these must suffice.
First, while the movement toward criminal justice and other mechanisms has partly been powered by a profound sense of frustration regarding the weak enforcement of human rights through UN Treaty Bodies such as the UN Human Rights Council and traditional international courts, the latter institutions still constitute one crucial component in the mix of mechanisms through which the international community responds to human rights violations.
Second, international courts, beyond criminal courts, include the International Court of Justice (ICJ), also called the “world court,” and regional courts. The ICJ addresses disputes between states, and it provides the UN with advisory opinions. Regional courts such as the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights have somewhat stronger enforcement mechanisms. Their judgments may demand reparation and force policy changes in member countries. Judgments also become binding law to nation-level courts.
Third, innovative experimentation with traditional justice mechanisms holds some promise. Reponses to the Rwanda genocide included a new institution, called inkiko gacaca (gacaca). The gacaca, while inspired by traditional justice forms, is a modern system of some 10,000 community-based judicial bodies, oriented toward retributive and restorative justice, and administered by the Rwandan state. By establishing the gacaca, the state responded to a desperate situation in which up to 120,000 detainees waited for their trials in overcrowded cells in this extremely poor country of just six million people (see Meyerstein 2007).
Finally, truth commissions (TC) have become important supplements, predecessors, or alternatives to criminal courts. They are bodies that focus on the past, investigate long-lasting patterns of abuses, are constituted for limited periods of time and conclude their work with a report. They are officially sanctioned and authorized by the state (Hayner 2001). The name “TC,” of course, is often misleading, as the truth is frequently well known, while its acknowledgement is at stake. The Argentinean TC, for example, the National Commission on the Disappeared was created in 1983 per decree by President Rau´ l Alfonsin after 7 years of military dictatorship, during which tens of thousands endured arrest and torture and “were disappeared.” Eventually, the commission turned its files over to the prosecutor’s office and thus provided critical evidence for the cases against senior members of the military Junta. Importantly, TCs may contribute to accountability in ways not available to criminal courts. Instead of attributing responsibility to particular individuals alone, they examine broader patterns of abuse, thereby encouraging institutional reforms. They may thus also challenge broad sectors of society and segments of the population that carry some degree of responsibility, from bureaucrats to torturers and profiteers all the way to by-standers who refused to speak up.
Domestic, hybrid, foreign and international courts have increasingly applied international human rights law, especially since the end of the Cold War. International courts or tribunals, once created, require resourceful actors with different types of capital, to successfully fight challengers and to actually get a functioning court off the ground. The specific institutional forms courts take have massive implications for their functioning. Establishing and operating courts involved in human rights issues, even more than other courts, faces diverse fields of tension: between a formal-procedural versus a pragmatic outcome orientation, restricted versus expanded jurisdiction, and individual versus collective accountability. Criminal courts often face considerable challenges as human rights perpetration typically occurs in complex organizational and political contexts. Yet, recent research indicates the potential of positive outcomes. Both a deterrence function and the establishment of collective memories that delegitimize past inhumane practices appear to be at work. Finally, human rights courts are supplemented by other institutions such as lustration or truth commissions, at times thought of as alternatives, but often crucial supplements of criminal justice intervention.
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