Civilians typically bear the brunt of suffering in contemporary conflicts. Long after liberated Nazi concentration camp survivors held up the first sign declaring, ‘Never Again!’ civilians have faced genocide in Bangladesh, Burundi, Guatemala, Cambodia, the former Yugoslavia, Rwanda, and Darfur. Sexual violence, torture, and forced disappearances also count among the innumerable horrors that civilians continue to endure.
In the 1990s, international officials sought to respond to such suffering by establishing a new generation of wartime international criminal tribunals (ICTs or war crimes tribunals). In particular, in 1993 the United Nations Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY, or Yugoslav Tribunal). The ICTY paved the way for the establishment of the permanent International Criminal Court (ICC) five years later. Unlike earlier ICTs in Nuremberg and Tokyo—as well as recent war crimes tribunals in Rwanda, Sierra Leone, Cambodia, East Timor, Lebanon, Bosnia, and Kosovo—both the ICTY and ICC are mandated to prosecute international criminal law (ICL) violations committed in the context of active armed conflicts. In so doing, the ICTY’s and ICC’s founders hoped that they might, among other things, deter combatants in those conflicts from perpetrating violence against civilians.
Over 25 years after the establishment of the first wartime ICT, there are still more questions than answers regarding these institutions’ role in deterring atrocities. Skeptics contend that, in the heat of battle, combatants are unlikely to perceive a substantial risk of international legal punishment.[i] Moreover, ICTs face formidable political obstacles that impair their ability to secure arrests and convictions, and thereby enforce the law. Pessimists argue that if an ICT were in a position to arrest weak combatants (including rebels), doing so might motivate encourage them to escalate attacks on civilians to gain leverage that would help them to evade international criminal prosecution.[ii] In contrast, optimists argue that ICTs can deter violence against civilians so long as their officials secure the prosecutorial support necessary to punish war criminals.[iii]
In a new article—”Deterring Wartime Atrocities: Hard Lessons from the Yugoslav Tribunal” appearing in International Security (edited at Harvard University’s Belfer Center for Science and International Affairs)—Dr. Jacqueline R. McAllister argues that none of the aforementioned views fully captures how and when wartime ICTs might deter atrocities against civilians. Insights from criminology, as well as research on civil conflicts and international legal compliance, suggest that ICTs are most likely to deter government and rebel forces from committing atrocities against civilians when all three of the following conditions are present: (1) ICT officials have secured sufficient prosecutorial support, (2) combatant groups rely on support from liberal constituencies, and (3) combatant groups have centralized structures. Case studies of the ICTY’s impact on fourteen combatant groups from the Yugoslav conflicts—combined with hundreds of field interviews with war veterans and others involved in hostilities (whose perspectives have been missing in existing studies on international criminal deterrence)—confirm these predictions. The ICTY’s record thus sheds important sight into how and when contemporary wartime ICTs—including the International Criminal Court—might succeed in deterring combatant atrocities against civilians.
To learn more about Dr. McAllister’s work, follow her on Twitter @j_r_mcallister.
[i]. Tom J. Farer, “Restraining the Barbarians: Can International Criminal Law Help?” Human Rights Quarterly, Vol. 22, No. 1 (February 2000), pp. 90–117, doi.org/10.1353/hrq.2000.0006; James F. Alexander, “The International Criminal Court and the Prevention of Atrocities: Predicting the Court’s Impact,” Villanova Law Review, Vol. 54, No. 1 (2009), pp. 1–55, http://digitalcommons.law.villanova.edu/vlr/vol54/iss1/1; Kate Cronin-Furman, “Managing Expectations: International Criminal Trials and the Prospects for Deterrence of Mass Atrocity,” International Journal of Transitional Justice, Vol. 7, No. 3 (2013), pp. 434–454, doi.org/10.1093/ijtj/ijt016; Susanne D. Mueller, “Kenya and the International Criminal Court (ICC): Politics, the Election, and the Law,” Journal of Eastern African Studies, Vol. 8, No. 1 (2013), pp. 25–42, doi.org/10.1080/17531055.2013.874142; and David Mendeloff, “Punish or Persuade? The Compellence Logic of International Criminal Court Intervention in Cases of Ongoing Civilian Violence,” International Studies Review, Vol. 20, No. 3 (September 2017), pp. 395–421, doi.org/10.1093/isr/vix042.
[ii]. Jack Snyder and Leslie Vinjamuri, “Trials and Errors: Principle and Pragmatism in Strategies of International Justice,” International Security, Vol. 28, No. 3 (Winter 2003/04), pp. 5–44, doi.org/10.1162/016228803773100066; Jack Goldsmith, “The Self-Defeating International Criminal Court,” University of Chicago Law Review, Vol. 70, No. 1 (2003), pp. 89–104, https://chicagounbound.uchicago.edu/uclrev/vol70/iss1/7; Jack Goldsmith and Stephen D. Krasner, “The Limits of Idealism,” Daedalus, Vol. 132, No. 1 (Winter 2003), pp. 47–63, https://www.jstor.org/stable/20027822; Daniel Krcmaric, “The Justice Dilemma: International Criminal Accountability, Mass Atrocities, and Civil Conflict,” Ph.D. dissertation, Duke University, 2015; Monika Nalepa and Emilia Justnya Powell, “The Role of Domestic Opposition and International Justice Regimes in Peaceful Transitions of Power,” Journal of Conflict Resolution, Vol. 60, No. 7 (October 2016), pp. 1191–1218, doi.org/10.1177%2F0022002714567946; Alyssa K. Prorok, “The (In)compatibility of Peace and Justice? The International Criminal Court and Civil Conflict Termination,” International Organization, Vol. 71, No. 2 (Spring 2017), pp. 213–243, doi.org/10.1017/S0020818317000078; Michael Broache, “Irrelevance, Instigation, and Prevention: The Mixed Effects of International Criminal Court Prosecutions in Atrocities in the CNDP/M23 Case,” International Journal of Transitional Justice, Vol. 10, No. 3 (November 2016), pp. 388–409, doi.org/10.1093/ijtj/ijw020; Julian Ku and Jide Nzelibe, “Do International Criminal Tribunals Deter or Exacerbate Humanitarian Atrocities?” Washington University Law Quarterly, Vol. 84, No. 4 (2006), pp. 777–834; and William A. Schabas, “Victor’s Justice: Selecting “Situations” at the International Criminal Court,” John Marshall Law Review, Vol. 43, No. 3 (Spring 2010), pp. 535–552, https://repository.jmls.edu/lawreview/vol43/iss3/3.
[iii]. Hyeran Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?,” International Organization, Vol. 70, No. 3 (Summer 2016), pp. 443–475, doi.org/10.1017/S0020818316000114; Hyren Jo and Beth A. Simmons, “Can the International Criminal Court Deter Atrocity?—CORRIGENDUM,” International Organization, Vol. 71, No. 2 (Spring 2017), pp. 419–421, doi.org/10.1017/S0020818317000042; Kathryn Sikkink, The Justice Cascade: How Human Rights Prosecutions Are Changing World Politics (New York: W.W. Norton, 2011); and Courtney Hillebrecht, “The Deterrent Effects of the International Criminal Court: Evidence from Libya,” International Interactions, Vol. 42, No. 4 (2016), pp. 616–643, doi.org/10.1080/03050629.2016.1185713.