Document Type

Article

Publication Title

Yale Journal of International Law

Abstract

This Article examines the arguments of the epistemic community of international lawyers (primarily scholars, human rights activists, and others involved in the establishment or the operation of the ad hoc tribunals) that have been used to justify the creation, jurisdiction, and ongoing operation of the Balkan and Rwanda tribunals. First, international lawyers characterize offenses in both regions as crimes of states, because such offenses, either by definition or because of their scale or scope, tend to require the connivance or at least acquiescence of governmental authority. They are seen as crimes committed by states. Second, they are seen as crimes of states because, at least since Nuremberg, if not before, such offenses have been criminalized by the collective action of sovereign states. Since the international community of nations has defined the requisites of genocide, crimes against humanity, and war crimes, these criminal norms belong to the international community of states that gave them legal imprimatur through treaties or through the practice and opinio juris that creates customary international legal norms. Finally, they are considered to be crimes of states because states' failure to prevent such offenses or to punish perpetrators has a direct impact on interstate interests (for example, because of the consequences to international peace and security or because of the implications for the credibility of international norms and institutions). International lawyers build a set of arguments from the notion of crimes of state, which I call the international legal paradigm, to justify and operationalize international criminal accountability. I argue that seeing the underlying offenses as primarily crimes of states helps explain certain important but troublesome characteristics of these ad hoc tribunals.

First Page

365

Volume

24

Publication Date

1999

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