Alternatives to International Criminal Justice
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Description
For most of recorded history, the response to what today we would call ‘international crime’, including mass atrocities, has been to avoid the mechanisms of international criminal justice. There was, after all, a gap of nearly 500 years between the first known internationalized war crimes prosecution and the second, at Nuremberg after World War II (see Nuremberg IMT), and nearly half a century before another comparable attempt, through the ICTY and the ICTR. Today, despite the turn to a motley collection of internationalized criminal courts, it remains probable that the majority of perpetrators of serious international crimes will not be brought before any of them. The ad hoc war crimes tribunals and especially the new ‘hybrid’ models in East Timor, Kosovo, and Sierra Leone (which lack even the rhetorically useful possibility of being backed by Chapter VII enforcement), as well as in Lebanon, have severely limited jurisdictions, restricted resources, and uneven legitimacy (see mixed or internationalized tribunals). As for the ICC, that Court, wholly apart from its limited capacity, will not terminate states’ recourse to the alternatives surveyed here for many reasons: (i) not all states are ICC parties and some that are not, namely the US, are attempting mightily (as through ‘Article 98’ bilateral agreements) to preclude their nationals from being subject to its jurisdiction; (ii) only three forms of international crimes are subject to its jurisdiction; (iii) the most common form of mass atrocity (namely that occurring within the jurisdiction of a state and by its own nationals) may be beyond the reach of the Court’s comprised jurisdiction; (iv) only a fraction of ICC parties have so far made it possible under their domestic law to both cooperate with the Court and to be able to nationally prosecute perpetrators; and (v) complementarity defers to national processes. Further, as is suggested by the ICC’s complementarity scheme, for all but a handful of international lawyers, national courts (for civil or criminal trials) remain preferable in most instances because these are usually closer to the crimes, the perpetrators, the victims, and the evidence, and therefore are more likely to deter criminals, preserve a truthful historical record, mollify victims, affirm the rule of law, and promote national reconciliation—even when international crimes of interest to the ‘international community’ are involved. The needs of Realpolitik have led most states most of the time to avoid criminal accountability. As Cassese’s contribution to this volume explains: (i) it may be politically impossible to put on trial the usual perpetrators of such offences (namely state officials); (ii) administrating justice may be too difficult during a conflict or the temptations of reconciliation too great once it is over; (iii) it may be untenable to prosecute individually mass offences committed by many; or (iv) neither the laws nor the courageous, competent and honest officials exist to pursue fair prosecutions or to adjudicate civil claims. Impunity—whether in the guise of simply doing nothing in the wake of mass crimes or through a ‘blanket amnesty’ purporting to exchange amnesia for peace—has often been the result. But the response to mass atrocities has not been limited to a harsh choice between impunity and bringing all perpetrators to account in court. In some cases states have resorted to the other alternatives surveyed here—truth commissions, lustrations or other non-criminal sanctions, distinct forms of amnesty, and other mechanisms to respond to victims. Recourse to such non-prosecutorial alternatives is not always an immoral, ill-considered, or venial attempt to avoid accountability or defy the rule of law. Advocates of ‘restorative justice’ have argued that in some cases the pursuit of these or other alternatives to criminal accountability is more likely to achieve the grandiose goals associated with Nuremberg.
Source Publication
The Oxford Companion to International Criminal Justice
Source Editors/Authors
Antonio Cassese
Publication Date
2009
Recommended Citation
Alvarez, José E., "Alternatives to International Criminal Justice" (2009). Faculty Chapters. 74.
https://gretchen.law.nyu.edu/fac-chapt/74
