Peace-building by the Rule of Law: An Examination of Intervention
in the Form of International Tribunals*
Institute for Peace Science, Hiroshima University
The rule of law is key to coordinating peace operations,
or peace-building activities in particular, in post-conflict regions
(1). Its application describes a situation in which people respect the
fundamental rights of others, offering greater stability to the society
as a whole. The rule of law is normally understood to be an ideal that
provides both justice and order as well as individual freedom and social
stability. Usually, fundamental rules and institutions of the rule of
law are specified in constitutional law, or otherwise, authoritatively
interpreted according to constitutional procedures. The rule of law
dictates that all persons obey the constitutional procedures and solve
conflicts in accordance with law.
Given this function of what we call the rule of law,
it is natural and indeed appropriate to see it as a guiding principle
of peace-building activities. In doing so, however, we realize that
there is a fundamental predicament regarding its application in war-torn
society. In a disrupted society, it is rare and unrealistic to find
a constitutional framework functioning authoritatively as a guiding
principle. The lack of constitutional rules and institutions does not
merely mean that the restoration of constitutional law is needed. Peace
operations take place where more or less any constitutional settings
lack authority, failing to function as the foundation of the "culture
of the rule of law."
The International Criminal Tribunal for the Former Yugoslavia
(ICTY)(2) and the International Criminal Court for Rwanda (ICTR) (3)
were established to represent a link between conflict resolution and
the rule of law. They are expected to contribute to making, keeping
or building peace in law-broken societies by implementing an international
legal standard. They are historic experiments of peace operation through
the institution of law-enforcement. They are derived from the belief
that "international justice" contributes to "international
peace." Along the same line, the International Criminal Court (ICC)
is ready to be established when it receives the requisite number of
ratification. The ICC is also expected to function in the context of
post-conflict disrupted societies. It will not work exclusively for
peace-building purposes, but it certainly inherits the function that
the ICTY and the ICTR are fulfilling.
The aim of this essay is to examine the international
tribunals from the perspective of peace operations. This is not a purely
legal analysis of the tribunals; the questions posed in the essay are
rather political in nature. In what sense are they said to contribute
to peace? Are they really necessary and useful institutions for maintaining
peace? Is it always the case that pursuing justice solidifies peace?
What kind of peace is the establishment of the rule of law intended
to achieve? The essay seeks to answer these questions by placing international
criminal tribunals in the context of peace operations.
It should be noted that the rule of law in the context
of international criminal tribunals does not mean the establishment
of domestic legal structures. It principally means the prosecution and
punishment of war criminals under international rules. The purpose of
such an attempt is to impose accountability in war-torn societies and
replace the "culture of impunity" with that of the rule of
law. It is an intrinsically external and even interventionary attempt.
International criminal tribunals do not fall into the category of what
is usually understood as humanitarian intervention, because they are
non-military interventions. However, this essay claims that they are
interventionary in the sense that they dictatorially intervene in domestic
jurisdiction, and humanitarian in the sense that they work to contribute
to implementing humanitarian values, or more specifically, international
The first section looks at the past, present and future
types of tribunals, and identifies the tendency and task of tribunals
in current international society. The second presents three perceptions
of the nexus between peace and justice, which determine the philosophical
foundation of international criminal tribunals. The third considers
the strategies of international criminal tribunals as "judicial
intervention" in the context of peace operations. The fourth section
examines the problems of tribunals by drawing attention to the nature
of peace, the aim of international criminal tribunals. The concluding
remarks try to highlight the positive as well as negative aspects of
Typology: Past, Present and Future Tribunals
In order to identify the implications of international
tribunals in the context of peace-building, it is instructive to look
at their past, present and future examples. While war crimes tribunals
are always somehow related to military conflicts, their association
with international peace operations is rather new. The precedents of
the Nuremberg and the Tokyo International Military Tribunals are quite
often referred to when the historical background of ICTY and ICTR is
discussed. They established the so-called Nuremberg principles and provided
individual criminal responsibility for the first time in history. However,
while the Nuremberg and Tokyo Military Tribunals were certainly "international,"
they were not maintained by the international community as a whole.
The critics of the Military Tribunals called them "the victor's
justice," imposed by the Allied powers, especially the United States,
on the Axis enemies. They were the tribunals for the victors to punish
its defeated enemies, which was some kind of extension of warfare among
By contrast, it is often claimed that the ICTY and ICTR
dispense "victim's justice." (Watson, 2000, p. 719) It is
worth pointing out that while American, British, French and Russian
chief prosecutors composed respective national groups of prosecutors
at the time of Nuremberg, the case of ICTY "demonstrates the first
time in history that there has been an international prosecutor's office
investigating international war crimes." (Goldstone, 1997, p. 5)
(4). It would be fair to say that in comparison with the ICTY and ICTR,
the Nuremberg and Tokyo Military Tribunals were also ad hoc, but more
limited in their scope. They were limited not only because the victors
alone organized the Military Tribunals, but also because the Tribunals
had no formal authority beyond war participants. The parties to the
Tribunal were parties to the war. The precedents represented what I
may call "ad hoc compulsory multilateralism," which punished
criminals by means of the power of the victors.
The ICTY and ICTR are different from the ICC as well,
not simply because the latter will be permanent. The ICC is a creature
of multilateral treaty making and does not have overriding power over
states. It is true that a person may be prosecuted if the state where
crimes occurred is a party to the Statute of Rome, even if his or her
home country is not. (The Rome Statute of 1998, 1999, Article 12) That
is why the United States vigorously opposed the Statute of Rome and
still has no serious possibility of joining the ICC. Nevertheless, the
ICC will basically have no binding authority over non state parties.
Even after its establishment, a majority of states will remain outside
the jurisdiction of the ICC for a considerable period. I shall call
this nature of the ICC "permanent voluntary multilateralism,"
although it is possible that it might exert different kinds of functions.
The ICTY and ICTR have a different nature. They are not
permanent tribunals; instead they are ad hoc tribunals that focus on
specific conflicts in specific regions. However, they are more powerful
than the ICC. The Security Council acting under Chapter VII of the UN
Charter established the tribunals, and the enforcement power of the
Security Council always reside behind their activities. The orders of
the Tribunals have the authority of Chapter VII and theoretically no
UN member state can challenge them. The ad hoc tribunals are concerned
with specific criminals, but exercise almost universally binding power.
The power is not perfectly universal, since some states are not recognized
as members of the United Nations yet. Still, cooperation with the ICTY
and ICTR is obligatory for most states in the world. I may therefore
assert that in comparison with the ICC's permanent multilateralism,
the scope of the ICTY and ICTR is "ad hoc compulsory universalism."(5)
The reason why Chapter VII and the Security Council seem
almost omnipotent lies in the imminent necessity of measures for "international
peace and security." Achieving international peace recognized as
the foremost and imperative purpose in the UN Charter enables the Security
Council to resort to enforcement power. The reason why the ICTY and
ICTR hold such universally compulsory power is that they are established
for the aim of achieving "international peace and security."
It is because the Security Council recognized the situations in the
territories of the Former Yugoslavia and Rwanda in 1993 and 1994 respectively
as "threats to international peace and security" and established
the ICTY and the ICTR, hoping that "the prosecution of persons
responsible for serious violations of international humanitarian law"
would "contribute to the restoration and maintenance of peace"
in the Former Yugoslavia and "to the process of national reconciliation
and to the restoration and maintenance of peace" in Rwanda. (United
Nations, 1993; United Nations, 1994) This indicates that the two ad
hoc tribunals were located in the context of ongoing international peace
operations, which was lacking in the Military Tribunals after the Second
The ICC seems to be more inclined to be a genuinely judicial
organ than the ad hoc tribunals in the sense that it is not explicitly
linked to "peace." However, the critical power of the Security
Council provided in the Statute of Rome to initiate investigations and
suspend them suggests that it could use the ICC as a tool for peace
operations, and as a substitute for ad hoc tribunals. (The Rome Statute
of 1998, 1999, Articles 13, 16) This means that when the ICC is somehow
linked to peace operations in conflict-ridden areas, it will act as
a Chapter VII enforcement organ like the ICTY and ICTR. The trend of
"new interventionism" since the end of the Cold War determines
the aspects of the ICC which are linked to peace operations. It is these
aspects of the international criminal tribunals that this essay focuses
on and further examines in the next section.
Philosophy: Three Perceptions of Tribunals
There has been a massive collection of studies on the
nature, achievements and problems of international criminal tribunals.
The ICTY and ICTR have made some major developments in the field of
international law by articulating the power of the Security Council
to create ad hoc tribunals, applying the rules in Article 3 common to
the 1949 Geneva Conventions to internal warfare, recognizing rape as
a crime of genocide, and so on. However, despite such prominent records
in international humanitarian law, the overall implications of the two
tribunals in a wider context of peace operations have been rather controversial.
The raison d'être of the ad hoc tribunals is their expected contributions
to maintaining peace in the Former Yugoslavia and Rwanda, but this reason
for their existence is sometimes called into question. The ad hoc tribunals
are judicial organs and deliver justice in the first instance. Since
they are concerned more about justice than peace, their foundation in
"international peace and security" might collide with purely
judicial needs. Many fear that the same will apply to the ICC.
The ambiguous nature of the ad hoc tribunals indicates
deep philosophical issues concerning the nexus between peace and justice.
Does justice really contribute to peace? Should we reject unjust peace
even in post-conflict regions? Is it not true that the idea of natural
harmony of peace and justice is a groundless and even dangerous assumption
in international relations, as E. H. Carr pointed out in the middle
of the last century? (Carr, 1939) This essay finds that there may be
three positions toward the ad hoc tribunals as well as the ICC in terms
of the nexus between peace and justice. I call them "harmonious,"
"adversarial" and "conditional" positions.
First, one may insist that we should put priority on
justice. Or more accurately, we should not understand justice as opposed
to peace; rather we need to identify their strong interrelationship.
This is the "harmonious" view of justice and peace. Lawyers
tend to have the "justice first, then peace follows" attitude.
The first Prosecutor of the ad hoc tribunals, Richard Goldstone, is
fully conscious of political doubts about the international criminal
tribunals, but unequivocally against politics. He remarks that "we
have had illustrated the political approach which subscribes to the
view that peace is more important and should be achieved if necessary
at the cost of justice, and, on the other hand, we have had the approach
from the perspective of the victim. In my opinion, it is the victim
who is too often and too frequently left out of the equation and left
out of account." He strongly criticized the failure of IFOR (the
Implementation Force in Bosnia) to have a policy of arresting indicted
war criminals and said that "it is their job to go out and make
the arrest." (Goldstone, 1997, pp. 7-8) The Prosecutor strongly
rejected the notion of peace perceived by IFOR or political leaders
in the West, and advocated the "justice first" approach. Of
course, he would not say that peace has no value. But he emphasizes
the direct link between justice and peace and asserts that "justice
can be a useful tool for peacekeeping or peace building." (Goldstone,
1996, p. 501) According to him, there will not be an enduring peace
without attempts to bring justice. He points out that the function of
justice, which includes exposure of the truth by avoiding the imposition
of collective guilt, public and official acknowledgment to the victims,
accurate and faithful recording of history, curbing criminal conduct
by implementing efficient criminal justice, and revealing a systematic
pattern of gross human rights violations, would help to consolidate
peace. (Goldstone, 1996, pp. 488-490; Akhavan, 1998; Akhavan, 2001)
The second "adversarial" view does not recognize
such a positive link between peace and justice. Far from that, excessive
pursuit of justice in an unstable society risks undermining opportunities
of peace. Priority of politics over law might explain this standpoint.
This widely prevailing political opinion was recently expressed by a
prominent political scientist, Stephen Krasner, who responded to former
US President Clinton's signing the Statute of Rome. He identifies the
ICC as "the wrong instrument for dealing with large-scale war,
devastation, destruction and crimes against humanity" and emphasized
that "developing stable democratic societies and limiting the loss
of human life require prudent political calculations, not judicial findings."
He sees no direct link between peace and justice, as "Judgments
about individual guilt can point in one direction, and judgments about
political order and the promotion of peace and democracy can point in
another." Krasner acknowledges the effective contribution of judicial
processes "if they are conducted through national, not international,
tribunals, and if they are designed to elicit the truth, as South Africa's
was." However, when "criminal prosecution is pressed without
consideration of political realities, the search for justice could hinder
democratic rebuilding in war torn nations." (Krasner, 2001)
The third view would be located between the pros and
cons. What I call the "conditional" view pursues further development
of international tribunals, but still warns against inappropriate implementation
of legality that ignores political considerations. There are many variations
in this camp, since the critical matter is how you take political factors
into consideration. But interesting examples would include David Scheffer,
former US Ambassador-at-large for war crimes, who strongly supported
the two ad hoc tribunals and the setting up of an international criminal
court, but eventually opposed the Statute of Rome. He is now rather
known for his strong opposition to the Statute of Rome at the time of
the ICC conference in 1998. In his article published in 1996, however,
he advocated a powerful international criminal court. He urged the Security
Council to make efforts to strengthen a future international criminal
court, which will be more cost-effective but could be weaker than the
ad hoc tribunals. Scheffer observed that "The ad hoc war crimes
tribunals and the proposal for a permanent international criminal court
are significant steps toward creating the capacity for international
judicial intervention." (Scheffer, 1996, p. 51; Tocker, 1994; Kerr,
2000) Then we are tempted to ask why the same person voted against the
Statute of Rome in 1998. He insisted in vain on the exclusive power
of the Security Council in commencing investigations. Fearing that "U.S.
senior officials, commanders, and soldiers face an international investigation
and even prosecution," at the final moment of the conference Scheffer
proposed an amendment to require acceptance of both the territorial
state and the state of nationality of the accused for exercising the
ICC's jurisdiction. He lost in a lopsided vote of 113 against, 17 for,
and 25 abstentions. (Weschler, 2000, p. 107) Scheffer later criticized
the Statute of Rome by saying that the ICC should be able to prosecute
tyrants, "while at the same time not inhibiting states from contributing
to efforts to help protect international peace and security." (Scheffer,
2000, p. 116)
These three views reflect the opposition between law-oriented
and politics-oriented approaches or idealist and realist approaches,
and they also signify the ways to understand the values of peace and
justice in international society. As Hedley Bull demonstrated the opposition
between order and justice in his The Anarchical Society, (Bull, 1977,
Chapter 4) peace in its negative connotation as the absence of war leads
to a different value system from what justice demands. In Bull's terms,
the Hobbesian or realist sees international relations as the place for
incessant struggles among states. On the contrary, the Kantian or revolutionist
conceives of it as a unified world of cosmopolitan human beings. The
former prioritizes political dimensions of the world of power struggles,
while the latter believes in the validity of universal justice. For
the Hobbesian, order is the first value to be achieved, because immature
quest for universal justice without a central international government
would only cause further confusion. For the Kantian, justice is the
solid way to peace because unjust world order remains unstable. The
famous Kantian theme revitalized by Michael Doyle is that perpetual
peace is well secured only among democracies; a doctrine the hard-core
realist denies. To put it simply, the Hobbesian takes the "adversarial"
view and the Kantian eschews the "harmonious" view of peace
The middle ground position in Bull's conceptual map is
called the Grotian or rationalist, who admits the necessity of power
politics among states, but still identifies a certain set of rules and
norms which bind states and other actors in international society. The
Grotian does not overemphasize inevitability of power struggles, but
never fully propagates universal justice either. The position is to
take hold of fundamental values and principles of international society
and observe them to solidify the normative pillars of international
society. However, he proceeds with special care in order not to jeopardize
political order. The "conditional" support for international
tribunals somehow falls in this category. It is undeniable that the
implementation of justice points to a more desirable world. Yet, international
society of sovereign states would not keep pace with a rapid development
of international criminal justice. The Grotian "conditional"
approach is summarized as follows: Let's do it, but only gradually and
It would be fair to say that the mainstream international
community more or less takes the Grotian standpoint. It advocates the
implementation of the international rule of law by creating international
tribunals. It believes that the rule of law promotes peace processes.
Nevertheless, it continues to take great care of maintaining the existing
international order. A historical example of the divide between the
Grotian and Kantian is the League of Nations, which Scheffer implicitly
mentioned when he criticized the Statute of Rome. (Scheffer, 2000, p.
116) Any major innovative attempt in line with the Kantian preference
which fails to get the US involved could be dangerous or at least insufficient
for the overall Grotian purpose of keeping international order.
The rule of law for the Grotian symbolizes an ideal of realizing the
two goals: advancing global values and keeping stable order. The concept
of the rule of law has nothing revolutionary to international order,
because it is intended to maintain order by resorting to the established
rules and principles. It aims to advance the rules and principles globally,
but only gradually. The supporters of current international order cooperate
with international tribunals as long as they advance international rules
and principles. They hope that the realization of the rule of law is
key to international peace operations. When international tribunals
turn around to threaten order itself, however, they need to be very
cautious and even antagonistic. The strategies of peace-building by
the rule of law derive from this standpoint.
Strategy: Judicial Intervention
Despite the foundation of "international peace and
security" for the ad hoc tribunals, the strategies for peace-building
have not been explicitly articulated. An official of the ICTR whom the
present writer interviewed in Arusha emphasized that the ICTR only contributes
to peace, implying it does not take principal responsibility of making,
keeping and building peace. But then we may ask why international criminal
tribunals are not just useless, or time- and money-consuming chimeras.
It is a matter of course that criminal justice should be implemented.
However, why do we need international criminal tribunals that may override
the jurisdiction of national courts? In this section I shall point out
some "strategies" for peace operations which the tribunals
are expected to fulfill prior to national counterparts: international
legitimacy and international indictments.
Before highlighting the strategies of international criminal
tribunals, it is instructive to contemplate the difference between the
international tribunals and "truth commissions," in order
to identify the international necessity of criminal tribunals. The Truth
and Reconciliation Commission in South Africa and similar predecessors
in Argentina, Chile, El Salvador, Honduras, Haiti, and Guatemala are
not judiciary organs in the strict sense. They did not prosecute and
punish criminals but uncovered "truths" of crimes in order
to achieve national reconciliation. The significant feature is that
all the countries that established truth commissions in Latin America
were dominantly Catholic. It is naturally assumed that truth commissions
took shape in accordance with Catholic values like confession and forgiveness.
The Truth and Reconciliation Commission in South Africa seemed to have
a similar orientation, since it aimed at disclosing atrocities during
the apartheid era, but it never meted out punishments or compensation.
The principal aim of truth commissions is national reconciliation.
In order to facilitate the reconciliatory process, they make hidden
crimes public. The philosophy behind such attempts is that truth, not
punishment, contributes to reconciliation. Criminals must be penitent
and victims should be encouraged to forgive them in order to construct
a new society together. This is a spiritual intercourse between criminals
and victims to renew a disrupted society as one. There is no role for
outsiders except supporting their spiritual efforts toward reconciliation
behind the scene. The third party as a mediator must also be a member
of the same society. The parties and stakeholders of conflicts organize
truth commissions with the aim of national reconciliation.
By contrast, the ICTY and ICTR are a form of intervention by outside
actors in internal affairs of conflict-torn-areas, while the term "internal"
connotes ambiguity. (Tocker, 1994; Scheffer, 1996; Kerr, 2000) Obviously,
the form of intervention is not military; but it is dictatorial in nature,
which satisfies the condition of intervention. It is not a "humanitarian
intervention" which aims to stop violence or save victims of conflicts
directly. However, the overall purpose of the tribunals coincides with
other forms of humanitarian intervention with respect to humanitarian
concern for victims in conflict-ridden-areas. The ICTY's relationship
with peacekeeping forces in Bosnia-Herzegovina during the Bosnian war
indicates a critical juncture of judicial organs with military forces.
It is true that one of the specified objectives of the
ICTR is national reconciliation. It is worth pointing out that the ICTR
is the first international tribunal established for national reconciliation
in history. Yet, the Security Council did not unequivocally address
a logical link between international peace and national reconciliation
through such a compulsory tribunal. The relevant questions were raised
by the representative of Rwanda in the Security Council when he voted
against the Resolution 955 to establish the ICTR. If the approach of
truth commissions is internal and introverted, that of the ICTY and
ICTR is rather external and interventionary. Goldstone praises the Truth
and Reconciliation Commission and expects similar measures to be achieved
on the international scene. (Goldstone, 1996, pp. 492-496) However,
against such a Kantian assumption, Krasner sees a fundamental difference
between international criminal tribunals and national courts. For him,
national attempts are supposed to facilitate national reconciliation,
but international interventions are not. (Krasner, 2001)
It seems that the effect of national reconciliation by
an international tribunal is rather limited. If international tribunals
are needed, it is because national courts cannot discharge their proper
functions or international tribunals have the mission which national
court do not fulfill. International tribunals work where and when national
courts cannot work properly. The credential of judicial intervention
is that there are usually no appropriate judicial systems or no sufficiently
legitimate organs in post-conflict disrupted societies. In the Former
Yugoslavia and Rwanda, the government and perpetrators are military
opponents. That applies to future ad hoc international tribunals in
Sierra Leone, Cambodia and East Timor. (Chandrasekaran, 2000) In post-conflict
situations, there is a need for the third party to intervene in order
to establish a transcendental point of view for judicial judgements.
The authority of universal rules embodied in international humanitarian
law and international human rights places a foundation of the rule of
law in domestic society upon which national reconciliation could be
enhanced. The existence of fundamental rules that were not subject to
regional conflicts is expected to be contributory to pinning the ethical
standard of conflict-ridden areas. International criminal tribunals
are not therefore obliged to give judgements to each perpetrator; it
demonstrates that internationally recognized justice directly applies
to conflict-saturated domestic society. The rule-of-law strategy intends
to secure the legitimacy of the international judicial process, while
never seriously violating national mechanisms.
The major difference between international tribunals
and truth commissions that the latter abstain from punishments for the
purpose of reconciliation reveals the strategy of punishments or indictments
for the former. Of course, normal national courts make judgements, but
the effect of prosecutions is limited when it comes to crimes between
warring parties. The function of issuing internationally valid indictments
of major political figures, even when there is a little prospect of
arresting them, is a significant strategy for peace operations. Judicial
intervention functions as a peacemaking organ by indicting war leaders
and giving a ground for their arrest and detention. Even when intervention
does not result in the detention of prosecuted perpetrators, indictments
theoretically work to deter further atrocities. It could also work as
a bargaining chip. (Schuett, 1997, p. 101)
Physical detentions may become a politically significant
factor, once a well-trained international police force is established.
There were opportunities for the ICTY to back police actions during
the wars in Bosnia and Kosovo. The Prosecutor issued indictments of
principal war leaders like Mladic and Karadzic, who have not been arrested
due to the lack of political will and practical difficulties. However,
if proper police forces with requisite authority had existed to implement
the indictments, the international tribunal might have taken on the
role of strategically targeting war crimes leaders to eliminate them
as destabilizing factors in a peace operation in post-conflict situations,
if not during a war. The Dayton Agreement in particular made the arrest
of criminals a matter of political discretion. (Gaeta, 1998; Jones,
1996) Even in case international forces chose not to arrest criminals
for political reasons, they still keep options to resort to police actions,
which would widen their discretional scope. (Schuett, 1997, p. 100)
As regards the ICTR, which was established after the
termination of the genocide and the civil war, the function of peacemaking
and peacekeeping is less clear. Still, given the unstable political
situation in Rwanda and hostilities toward the Rwandan government by
the leaders of the genocidal regime living outside Rwanda, the indictments
and detentions of criminals were not insignificant from the perspective
of peacekeeping. In fact, the most successful story of the ICTR is extradition
of a number of high ranking officials and politicians responsible for
the genocide, who were arrested in numerous countries. It could be argued
that restraints on the freedom of movement of war-crimes leaders are
important in order to prevent conflicts from expanding.
Many insist that indictments serve mostly to hamper peace
processes, because they discourage those who control military forces
from compromising on peace deals. (Krasner, 2001; Olonisakin, 1997,
pp. 832-833) It is true that the Prosecutor often shows a tendency to
pursue justice without political considerations. After visiting Belgrade
and meeting with the new Serb President, Vojislav Kostunica, in January
2001, the incumbent Prosecutor, Carla Del Ponte, pointed out that there
were such concerns in Belgrade as "Cooperation would add another
element of destabilization" or "Those prosecuted by the UN
would become heroes." But all these did not interest the Prosecutor.
(Del Ponte, 2001)
Still, one may argue that the indictment of Milosevic
was politically calculated. The timing of the issuance of the indictment
could be interpreted as the time that Western leaders no longer regarded
Milosevic as a peace-accord-broker. He became a direct enemy of "the
international community" represented by Western countries during
the Kosovo war in 1999 (Shinoda, 2000) like Saddam Hussein of Iraq has
been regarded as a "rogue" to be eliminated. "Go"
sign was politically plausible in 1999 from the perspective of the mainstream
international community, but it is not clear whether the sign is still
valid after the takeover of power by Kostunica.
The situation is differently complex in Rwanda. An incident
over 1999 and 2000 concerning Jean-Bosco Barayagwiza indicates a subtle
tension between legalism and the political mission of the ICTR. For
the reason of the violation of rights as a result of the prolonged delay
of the trial of the accused, Barayagwiza, who was arrested in Cameroon
on 15 April 1996, the Appeals Chamber ordered on 3 November 1999 that
he be released and delivered to Cameroon. (ICTR, 1999) The government
of Rwanda became furious because Barayagwiza was the policy director
of the foreign ministry of the former government, and even announced
suspension of cooperation with the ICTR. Given that the genocide took
place within the Rwandan territory and the Prosecutor's office is located
in Kigali, the termination of Rwandan cooperation would have meant a
death blow to the ICTR. The Prosecutor made best efforts to reverse
the decision of the Appeals Chamber, which eventually came true on 31
March 2000. Rwanda resumed its normal relationship with the ICTR. (Metcalfe,
2000a) Barayagwiza later declined to attend the trial and other detainees
in Arusha went on general strike to support him. They not only complained
about the ICTR as "the victor's justice," but also protested
against the political pressure from Kigali. (Metcalfe, 2000b; ICTR,
Another political controversy arose when a revelation
was made by a Canadian paper The National Post in 2000 that a UN prosecution
investigator once investigated the RPF (incumbent government) leaders'
involvement in the attack upon the airplane that killed President Habyarimana
in 1994. Because the clash triggered off the genocide and is generally
understood as a plot of Interahamwe militias, the revelation caused
a heavy impact upon the government of Rwanda. (Metcalfe, 2000c) Coincidentally,
there appeared an allegation by a former Tutsi intelligence officer
of RPF, Jean Pierre Mugabe living in the US that Paul Kagame, incumbent
President of Rwanda, and other RPF leaders ordered shooting Habyarimana's
airplane. Interestingly enough, the record of investigation into the
RPF's involvement in the clash kept by the UN Secretary General was
transferred to the President of the ICTR. The memorandum was put under
seal (ICTR, 2000a) and the Prosecutor decided not to investigate the
incident, (Panafrican News Agency, 2000; Kimani, 2000a) although the
memorandum was later made available to some defense counsels. (ICTR,
2000b; Kimani, 2000b) All these show how difficult and political it
is to issue indictments or even start investigations.
The "conditional" approach toward peace and
justice would evaluate positive and negative factors of the process
of issuing indictments. It demands discretion to say go and stop. The
ad hoc tribunals were granted judicial independence despite the fact
that they were directly created by the Security Council under Chapter
VII. The channels for such discretion are thus institutionally limited
due to the tribunals' independence, but the Security Council can anytime
decide to terminate the operation of the tribunals. In the future, the
ICC will be subject to constant scrutiny by the Security Council. The
Council's power to suspend investigations and prosecutions under the
Statute of Rome will be resorted to as a channel of discretion to put
political restraints on the actions of judicial intervention.
Uncertainty: Reality and Fiction of Individual Guilt
In this section, I shall consider the way international
criminal tribunals facilitate the "culture" of the rule of
law in the long term. The characteristic effect of judicial intervention
is increased focus upon individual responsibility; criminal justice
dissolves collective guilt into individual crimes. The concept of punishing
war crimes relies on the degree of individualization of international
legal structures. It used to be understood that international law did
not know individuals, but only states. However, it is nowadays widely
recognized that recent changes in legal and normative structures of
international society do not allow for such a simplistic state-centric
view. By individualizing war crimes, we are on the way to a culture
of the rule of law, which also illustrates positive and negative aspects
of judicial intervention.
Judicial intervention makes a clear contrast with traditional
approaches of military and political interventions. Military interventions
for humanitarian purposes aim at collective criminal acts. This does
not mean that the intervening forces are not concerned with individual
leaders. However, the principal and foremost function of military intervention
is to stop violence, whether perpetrators on the ground are legally
responsible or not. Political efforts toward conflict resolution normally
do not concern individual responsibility, while respecting the control
of political organs by individual leaders. Whether certain leaders are
criminal or not, peace negotiators deal with them as a means to resolve
conflicts. The major political concern in complex emergencies is to
terminate massive violence conducted by and imposed upon a large number
of people. Judicial intervention could point to a different direction.
Judicial intervention accuses multiple individuals ranging
from the highest authority to inferior soldiers of single criminal acts.
However, this is not to make one person take collective responsibility
for somebody else's sake, it is because criminal responsibility arises
at each level in a different manner. Namely, judicial intervention contributes
to peace by breaking down conflicts into individual crimes. It aims
for peace not through group-oriented-approaches like negotiating peace
accords and attacking brutal military forces, but through individualistic
approaches like arrests, detentions and punishments. It pursues peace
not by focusing on conflicts between groups, but criminal acts committed
The positive aspects of the ad hoc tribunal approach
includes clarification of the location and the degree of responsibility.
It distinguishes between political needs among conflicting groups and
political responsibility of individuals. Not all Serbs have to take
responsibility for the criminal acts in Bosnia-Herzegovina and Kosovo,
while non-Serb criminals must be equally prosecuted and punished as
individuals. Those who committed criminal acts are punishable regardless
of political ranks, although the quality and degree of their crimes
differ. The eradication of evil elements in a group by arresting criminal
individuals would contribute to future peace by assisting the entire
population to realize what constitutes evil in their political community.
It is imperative in the Former Yugoslavia and Rwanda to alleviate the
tensions between ethnic groups by indicating that the incessant ethnic
conflicts were not inevitable, but politically contrived by certain
criminal individuals. Accusation of individual guilt works to make atrocities
look less ethnic and fatalistic. The ad hoc tribunals are expected to
show the will of the international community to assert that conflict
was not the inevitable outcome of relations between incompatible ethnic
groups, but the evil intention of certain individuals that caused the
otherwise avoidable tragic incidents.
Negative aspects also derive from the individualist focus
of the ad hoc tribunals. To punish individual criminals is based on
the presupposition that individual efforts will achieve peace, although
there are serious doubts about it. The Erdemovic judgement in November
1996 by the Trial Chamber of the ICTY was criticized because of flaws
in legal procedures, but more fundamentally, because of the difficulty
in punishing inferiors who had no freedom to resist orders from superiors.
(Yee, 1997) Judicial intervention has to draw a clear boundary between
criminals and innocent parties. However, ethnic conflicts in the Former
Yugoslavia and Rwanda are not so simple as to be able to prosecute a
handful of criminals and prove the innocence of others without political
and practical considerations. The boundary might be highly arbitrary
or ambiguous. In the case of the ICTY, the inability to arrest more
senior officials would create a risk that the tribunal will punish only
a tiny number of minor figures who happened to be detained by authorities
despite many other potential criminals who are not arrested or even
indicted. The ICTR has been more successful in bringing higher officials
into court, but it cannot deal with more than 125,000 detainees in Rwandan
prisons who might suffer more severe sentences, including the death
penalty. In fact, the international community could not stop prosecutions
in 1998 in a soccer stadium in Kigali where 10,000 people gathered.
(Magnarella, 2000, pp. 80-81)
In essence, the conception of peace underlying in the
ad hoc tribunals is different from that in traditional forms of peace
operations. Judicial intervention aims at peace, presupposing that it
is achievable by addressing individual acts, while political intervention
pursues peace between certain groups. It is invalid in the twenty-first
century to presuppose that states monopolize political or military power
in armed conflicts. Many other groups and individuals may be politically
responsible for conflicts, while there are passive state officials who
might have been enforced to participate in atrocities. It is subtle
and difficult to determine the appropriateness of accusing individuals
who are faceless in conflicts, while assuming innocence of those involved
in conflicts indirectly. Of course, what is desirable is to reconcile
the judicial and political perceptions of peace and achieve a more peaceful
state in post-conflict regions. Nevertheless, the tension between the
two appears incessantly in diverse situations. So we need to ask which
kind of peace has priority in each occasion and what kind of value the
criminal tribunals maintain.
This essay has examined what international criminal tribunals
can accomplish with respect to peace operations. It has argued that
the present and future types of international criminal tribunals indicate
a strong link to peace operations. However, the essay then exemplifies
three opposing views on the relationship between peace and justice.
It suggests that the-rule-of-law approach is properly explained by the
"conditional" Grotian standpoint. The essay has also examined
the strategies involved in international criminal tribunals: providing
international legitimacy and international indictments. The establishment
of the culture of the rule of law is beyond immediate strategies, but
a final goal of the project of judicial intervention, in which reside
positive and negative factors.
It should be observed that the new, non-military form
of intervention by the international community, international criminal
tribunals, has invisible but important implications for peace-building.
The idea of the rule of law as valuable to securing peace and justice
is key to constructing a stable post-conflict society. Of course, criminal
tribunals are not the only method of the-rule-of-law approach to attain
peace. However, they symbolize a subtle nexus between peace and justice
in current international society. This essay is only a preliminary exercise
to comprehend the role of international criminal tribunals in the framework
of peace-building by the rule of law. But it suggests that while legal
interest in the tribunals is doubtlessly important, further examinations
in the context of peace operations are critically needed.
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* This paper was presented at the 2001 Annual Convention of International
Studies Association, March 22, 2001, Chicago, USA, and at the Centre
of International Studies, University of Cambridge, UK, May 22, 2001.
I would like to thank all participants. I especially thank James Mayall,
Philip Towle, Yasue Mochizuki, Hiroto Fujiwara, and Rodney Neufeld for
(1) "Peace operations" is a phrase that is meant
to include all international efforts to obtain peace such as peacemaking,
peacekeeping and peace-building. As for the usage of the term in an
official document, see the so-called "Brahimi Report." (United
(2) The International Tribunal for the Prosecution of
Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991.
(3) The International Criminal Tribunal for the Prosecution
of Persons Responsible for Genocide and Other Serious Violations of
International Humanitarian Law Committed in the Territory of Rwanda
and Rwandan citizens responsible for genocide and other such violations
committed in the territory of neighbouring States, between 1 January
1994 and 31 December 1994 .
(4) Michael P. Scharf argues that the United Nations was
involved in Bosnia-Herzegovina as a peacekeeping force and prejudiced
against the Serbs. He questions the validity of the number of judges
from Muslim countries (4 out of 11 in its initial stages) (Scharf, 1997,
pp. 310-311) It may be relevant to point out the fact that a considerable
majority of the ICTY's Prosecutor's Office is composed of British and
American staff. By contrast, Karl Arthur. Hochkammer had argued in 1995
that the lack of effective control of the territory by the international
community causes inability of the ICTY. (Hochkammer, 1995, p. 122)
(5)The Security Council decides that "all States shall cooperate
fully with the International Tribunal and its organs in accordance with
the present resolution and the Statute of the International Tribunal
and that consequently all States shall take any measures necessary under
their domestic law to implement the provisions of the present resolution
and the Statute, including the obligation of States to comply with requests
for assistance or orders issued by a Trial Chamber under Article 29
of the Statute.". (United Nations, 1993, and United Nations, 1994)