Justice as policy and strategy : a study of the tension between political and juridical responses to violations of international humanitarian law
In the decade of the 1990s international criminal justice and the international tribunals that enforce it emerged in international society as a major dimension of international relations. This has led to a widely held belief -- further strengthened by the establishment of the permanent International Criminal Court -- that genocide, crimes against humanity and war crimes will now consistently be punished by a legal sanction that was previously lacking. The literature in the field has overwhelmingly fostered this impression. But international criminal tribunals are created by sovereign states. Despite the rhetoric that drove this surge in the 1990s, because international justice is part of international relations, it is subject to the strategic imperatives of states, civil society and other actors, and these frequently clash. Thus it is argued that international justice can be most accurately explicated from the perspective not solely of legal rules of international humanitarian law, but from that of the theories and practice of international relations. The Nuremberg trials generated precedents in international law that have given impetus to the movement for individual criminal accountability. But to stress this fact alone is a selective reading of history, for the trials were essentially a case far more of justice as strategy than justice as policy. The nature of the international society means that the relationship between justice and the order that sustains that society is largely, though not completely, one of tension and contradiction. This thesis examines these tensions and contradictions and how they are resolved. It shows that the (anarchical) international society, and not the much talked about "international community" is the dominant context of how international justice actually works. The ad hoc tribunals do not represent the enthronement of justice as policy, but rather are political responses to crimes in selected, narrow geographies in which the society of states chose not to exercise political options that would have led to preventive action. The International Criminal Court does not represent "the end of history" in international justice. Efforts by liberal internationalism to universalize international justice through universal jurisdiction have been largely unsuccessful. So have the attempted prosecutions of persons who are seen as guardians of particular national, regional or international orders. And efforts to give the jurisdiction of the ICC primacy over that of sovereign states and limit the scope of action of some great powers have been robustly resisted. These cases demonstrate that, for as long as states remain the predominant organizing unit of international society, these tensions will remain. The international justice we see is conditional -- one that is selective, inconsistent, and either serves strategic ends or is only a product of political compromises at convenient moments.