LSESU AMNESTY INTERNATIONAL

Safia Southey

 

Retributive justice has long been championed in the international legal system as the primary way to ensure accountability for crimes that occur during conflict. They have been considered useful in not only punishing perpetrators but in providing justice and acknowledgment for victims. Contemporary literature on post-conflict justice has focused primarily on retribution in theory, and the failures and successes of trials within individual case studies. However, it is necessary to look further than specific case studies to identify the impact of trials and tribunals. Instead, we must examine how retributive justice is carried out internationally in order to more deeply understand the legacy it is building, both in regard to the trials that are carried out and those that are not. Retributive justice cannot promote reconciliation, primarily because its primary mechanism–international tribunals–are fundamentally flawed in both implementation and impact.

 

Implementation: Bias of Punitive International Law

While international law may in theory hold perpetrators of violence accountable for their actions, this punishment is much less certain in practice. Firstly, the legitimacy of international law itself is in question, as the international system is a struggle of power between states: international law is only respected when it is in their best interest. According to John Austin’s definition, law must include: 1) a command, 2) issued by a sovereign, and 3) backed by a sanction (Dewey 1894). Most critics of international law find issue with the last point; that international law is not inherently backed by a sanction. While countermeasures do exist and states can impose sanctions on countries that do not follow legal norms, these measures are not effective or automatic as in national law (Guzman 2009).

 

While Nuremberg Trials and the International Criminal Tribunal for the Former Yugoslavia (ICTY) may provide examples of war crimes that have gone punished, there are many more cases of violence that have been ignored for political reasons. For example, Israel has consistently violated international human rights law, stemming from basic guidelines in the Universal Declaration of Human Rights to UN General Assembly resolutions (such as Resolution 194, affirming the right of return for Palestine refugees to Israel), to the International Court of Justice Israeli Wall advisory opinion (Dugard 2013). However, the United States has consistently protected Israel against UN Security Council sanctions and has provided financial support to Israel, ensuring that any backlash against its unhumanitarian practices are not felt harshly by the country (Dugard).

 

The International Criminal Court has demonstrated a visible bias towards prosecuting leaders from African countries, rather than from the West. This is in large part due to three factors: 1) these countries have less political and financial power on the global stage to protect themselves from persecution, 2) these countries are more likely to sign onto the Rome Statute as a bargaining tool to gain more legitimacy and approval from the Global North, and 3) other countries find it more beneficial to use these countries and leaders as a symbol of international justice than to protect them for personal gain (Iommi 2020).

 

Is it not better that some get punished, even if not all perpetrators of violence do? Perhaps not, as this unequal power dynamic present the concept that perpetrators of violence learn that they will be able to get away with violence and war crimes if they make the right allies. The precedent established–that countries may turn a blind eye if it is politically or financially beneficial–allows violence to not only continue, but expand, with the realization that the international system can be manipulated, and that punishment is something you can negotiate out of. As poignantly articulated by Snyder and Vinjamuri, “the norm of justice has mutated in directions that recognize the right of states, especially powerful states, to exert control over the terms of justice” (2003). The fact that individuals and countries continue to perpetrate war crimes without penalty within a system that is supposed to uphold such standards only encourages more violations to occur, as countries will feel more comfortable escalating bad behavior if they see how few human rights violations are actually brought to court. As long as the international court system stays in a politically biased state, the system will continue to be regarded by all actors as another lever in their political toolbox as opposed to a genuine system of justice.

 

Impact: More Harm than Good?

It is necessary to identify for what purpose the international community is attempting to pursue retributive justice. The argument for retribution is typically centered around a few rationales, including deterrence, acknowledgment, and vengeance (Aukerman 2002). Regarding deterrence, evidence shows that trials and retribution in general do little to prevent further violence and are “not highly correlated with the consolidation of peaceful democracy” (Snyder and Vinjamuri 2003). In certain situations, such as in the ICTY, prosecuted individuals have been able to use the trials to their advantage, justify their actions through a strategy of negation, and living in prisons that resemble normal life to an extent, even letting some continue their business dealings. (Gow et al. 2014). Only 55% of people the ICC has issued arrest warrants for have been detained, and only three have been convicted for international crimes (ICC 2022).

 

The rationale for deterrence is fundamentally flawed, as the primary concerns held by perpetrators of war crimes and human rights abuses are typically not imprisonment, but rather assassination, death in battle, or loss of power. Those who are already willing to conduct genocides or wage illegal war are not likely to be stopped by the vague possibility that a trial will be brought against them. This is especially valid in the case when leaders have a) enough political and economic power to protect themselves (Israel), or b) so little international legitimacy that they have nothing to lose (North Korea). Literature must focus more on what contexts lead individuals to conduct war crimes, as only once we have a stronger grasp of these sociological factors will we be able to determine a successful form of deterrence–however, no evidence show trials and retribution from the international stage to be a compelling answer.

 

One may argue that retributive measures are a necessary component for victims, providing a sense of acknowledgment of the harms they have faced. However, trials and tribunals can actually negatively impact the process of truth-telling and victim satisfaction: by putting perpetrators in a position to defend themselves, the trial is providing a stage for these offenders to establish their own narrative, which may deviate from the facts and take attention away from (and retraumatize) the victims (Killean 2018). Further, hyper-focusing on trials may prevent societies from focusing on those who need it. It is a legalistic approach that prioritizes the needs of a prosecutor over the needs of a victim.

 

Alternatively, restorative-focused mechanisms commissions are better suited for the purpose of rehabilitation and reconciliation for both victims and perpetrators (Aukerman 2002). Trials often end up as a “costly exercise in establishing truths that were already accepted by everybody” (Fichtelberg 2009). Further, trials tend to unintentionally place responsibility not only on an individual, but on a group, making these groups less likely to accept their responsibility as they are actively being put on trial, hampering future efforts for reconciliation (Fichtelberg). Non-retributive methods, such as amnesties and truth commissions, have more often been the basis for stable peace agreements than trials, which seem to only be useful as a show of vengeance (Snyder and Vinjamuri 2003).

 

Conclusion

Trials may be important mechanisms for finding information, publicizing harms, and providing victims with a space to voice their truths (Aukerman 2002). However, the way trials have been brought about and enacted does not provide for any of these qualities. The lack of legitimacy, fairness, and accountability of international trials at the ICC and beyond drastically worsens the deterrent power of retributive justice. Exclusively relying on local courts, as suggested by Snyder and Vinjamuri, does not address the fundamental issues, as those involved in the conflict most definitely have their own biases and preferences at stake, as evidenced in the case of Gacaca courts (Loyle 2018). The punishment meted out by tribunals may be important, but in order to both legitimize the ICC as a respected court of justice on the global scale it will need to be depoliticized to a much greater extent than it currently is. Additionally, clear and enforceable punishment mechanisms need to be active for it to serve a purpose as a deterrent for future crimes, and the effect on victims should take on a much higher priority with the addition of transitional justice mechanisms. There is not a clear answer to how this would be achieved at the moment, but it would be doing a disservice to the victims of international crimes that we are setting out to serve to not look to address these glaring issues with how justice is carried out.

 

Bibliography

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Dewey, John (1894). “Austin’s Theory of Sovereignty.” Political Science Quarterly 9, no. 1, 31–52. https://doi.org/10.2307/2139902.

Dugard, John. (2013). “Palestine and the International Criminal Court: Institutional Failure or Bias?” Journal of International Criminal Justice 11. 563-570. 10.1093/jicj/mqt025.

Fichtelberg, Aaron. (2009). “Fair Trials and International Courts: A Critical Evaluation of the Nuremberg Legacy.” Criminal Justice Ethics, 28:1, 5-24, DOI: 10.1080/07311290902831268.

García Iommi, Lucrecia (2020). “Whose justice? The ICC ‘Africa problem’.” International Relations 34, no. 1: 105-129.

Gow, James, Rachel Kerr, and Zoran Pajić (2014) Prosecuting war crimes : lessons and legacies of the International Criminal Tribunal for the former Yugoslavia, Routledge.

Guzman, Andrew T. (2009). “Rethinking International Law as Law.” Proceedings of the Annual Meeting (American Society of International Law) 103: 155–57. http://www.jstor.org/stable/10.5305/procannmeetasil.103.1.0155.

International Criminal Court (2022). “About the Court.” https://www.icc-cpi.int/about/the-court.

Killean, Rachel (2018). “Constructing victimhood at the Khmer Rouge Tribunal: visibility, selectivity and participation.” International Review of Victimology 24, no. 3: 273-296.

Loyle, Cyanne E (2018). “Transitional justice and political order in Rwanda.” Ethnic and Racial Studies, 41:4, 663-680.

Snyder, Jack, and Leslie Vinjamuri (2003). “Trials and Errors: Principle and Pragmatism in Strategies of International Justice.” International Security 28, no. 3: 5–44. http://www.jstor.org/stable/4137476.