Occasional Paper #10:OP:3  

by David P. Forsythe

The United Nations Security Council created two ad hoc international criminal courts to deal with certain violations of human rights stemming from events in the former Yugoslavia and Rwanda. The U.N. General Assembly continues to debate the possibility of creating a standing international criminal court, with authority to try certain individuals under a list of international crimes that has yet to be finalized.

These recent U.N. developments have been largely welcomed by lawyers and human rights activists. Lawyers assume that the law on the books should become hard law, adjudicated in courts. Lawyers are trained to analyze case law as well as to practice in the courts. Human rights activists are driven by a moral commitment that welcomes prosecution for wrongdoing with its attendant notions of rule of law, deterrence of future violations and punishment for past transgressions. It falls to political scientists, mostly, to raise politically incorrect questions about whether international criminal courts can actually meet the high expectations generated by lawyers and activists.

It is quite possible that the two U.N. ad hoc criminal courts will improve on the precedents of the Nuremberg and Tokyo trials and will convict certain individuals of gross violations of human rights. It is even possible that a U.N. standing criminal court will come into being in the foreseeable future.

Evidence suggests, however, that the road to the international judiciazation particularly of the laws of war and genocide will be replete with major impediments. The central issue is whether international criminal proceedings produce more harm than good on balance. Secondarily, there is the question of what states will support, and whether their lack of support in foreign policy undermines the good name of a principle accepted within all rights protective states--namely, individual criminal responsibility.   

In Rwanda, prospect of individual prosecutions for genocide and violations of humanitarian law in internal armed conflict has already led to massive detention in deplorable prison conditions. Prospect of trials has impeded return of Hutu refugees. There is also the probability, to paraphrase Clausewitz, of the continuation of ethnic conflict through judicial means, as trials during Tutsi-dominated government will be directed mainly toward Hutus.

In former Yugoslavia, most states were reluctant to push war crimes trials for fear of undermining prospects of peace agreements. Then they were reluctant to pursue indicted persons vigorously, primarily because of the fear of undoing the peace accord already reached. Finally, key actors wanted to move on to reconciliation and reconstruction. As in El Salvador and South Africa, they wanted to emphasize cooperation in the future rather than dwelling on the past. While one might need a human rights process to establish the facts and provide catharsis, one might rationally choose to bypass international (and national) criminal proceedings for political acts. The issue, properly understood, is not individual criminality per se, but peace and reconciliation on a national basis.

Dr. David P. Forsythe is professor and chair at the department of political science, University of Nebraska in Lincoln.
 

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