The Failure of the ICTY to Deter International Crimes

by Julian Ku

Bloomberg BusinessWeek offers what is slowly becoming conventional wisdom on the ICTY, at least, if not international criminal justice in general.

Credit [] is due to the court, which focused on individual responsibility rather than collective guilt. This helped foster reconciliation among Serbs, Croats and Muslims in the former Yugoslavia.

But beyond the Balkans, it would be a mistake to exaggerate the court’s relevance as a deterrent to other would-be war criminals. The court was successful because its jurisdiction was limited and a broad consensus existed that these were the most heinous human rights violations in Europe since World War II.

The genocide in Darfur, Charles Taylor’s crimes in western Africa, the slaughter of civilians in Sri Lanka, and Muammar Qaddafi’s willingness to wage war against his own people in Libya all demonstrate a larger truth. International law, for all its good intentions, is no substitute for international action.

8 Responses

  1. When criticisms like this are launched against international criminal justice, I’m always reminded of Justice Jackson’s opening statement at Nuremberg: 

    “I am too well aware of the weaknesses of juridical action alone to contend that in itself your decision under this Charter can prevent future wars. Juridical action always comes after the event.  Wars are started only on the theory and in the confidence that they can be won.  Personal punishment, to be suffered only in the event the war is lost, will probably not be a sufficient deterrent to prevent a war where the warmakers feel the chances of defeat to be negligible.”

    He concludes:

    “Civilization asks whether law is so laggard as to be utterly helpless to deal with crimes of this magnitude by criminals of this order of importance.  It does not expect that you can make war impossible.  It does expect that your juridical action will put forces of international law, its precepts, its prohibitions and, most of all, its sanctions on the side of peace….”

    International criminal justice was never meant to be a substitute for international action.  It was to supplement it.  

  2. Echoing non liquet really – while ICrimJ may not prevent (at least in the cases situations we are all aware of – since, of course, we won’t hear of all those situations where the commission of international crimes were successfully deterred) it does add a consequence for those criminal actions that hitherto did not exist. Before, tyrants or generals or heads of state, or the individual soldier could act safe in the knowledge that there would be not risks/’adverse’ consequences of their actions, but as prosecutions become more frequent, they will increasingly have to weigh up the risks of being hauled in front of the Courts.

    Creating a culture of ICrimJ is going to take time – and would never be created by one ad hoc tribunal or a few high profile cases at the ICC – while this culture is cultivated, ICrimJ is, and always will be, just another tool in the box of available international action to stop this. Of course, expectations were going to be high, but there’s been a culture of impunity since time immemorial, so I don’t know, maybe all I’m suggesting is a little patience (of course, a little less of the double-standards from certain western states wouldn’t go amiss either).

  3. Further to the current two comments, see this article that suggest prosecution may help deter the use of child soldier (though of course by itself is not enough)

  4. This post is so full of non sequitur that it is hard to deal with. An ad hoc international tribunal has not deterred crimes elsewhere, so international justice is no good? Wouldn’t the most rational explanation be that a court of truly universal jurisdiction might actually deter crimes all over? And what is exactly meant by ‘international action’ as opposed to ‘international law’? Did the illegal intervention in Kosovo (=action without law) deter massacres elsewhere? Not really helpful. Law need to be effective as well as equal for everybody, and action needs to be legal. Not very different from any domestic legal system, really.

  5. Crimes by others occur even though we put some people in jail for crimes – ergo courts and criminal justice do not work.  If this is conventional wisdom, it is pretty idiotic conventional wisdom.

  6. For a judicial body with no enforcement arm, the ICC has done an amazing job. Should we consider adding an enforcement arm? Or should we drop our laws against theft and murder because we still have theft and murder?

    How about scrapping contract enforcement? Patent protection? Tariff agreements?

    One assumes the editors of Bloomberg BusinessWeek have education credentials in their CV’s, but it’s hard to tell here. Nobody ever said it was going to be easy.

  7. Professor Davis,

    Why don’t you come up with an empirical project to disprove Julian’s hypothesis that the ICTY, iCTR, ICC, have not deterred gross human rights violations.  Take a temporary step away from “enhancing worldwide understanding” and fighting for the right to dream, and crack out some old school, scientific, empirical work.  Seriously, if you really think that these institutions are preventing war crimes, then come up with a method, share it on this board to get comments, and then get to work.

  8. When officials under Qaddafi started peeling off of his regime one by one, my first thought was, “at least one of them’s got to be thinking about the ICC.”  I find it difficult to believe that they all did it for moral reasons, and at the time, Qaddafi’s defeat was far from certain (and still isn’t), so it can’t be entirely attributed to the bandwagoning effect, either.

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