Tags: International Law & Organization, Human Rights, Conflict Processes & War

A key hope behind wartime international criminal tribunals (ICTs) is that they might deter horrific atrocities. However, almost 26 years after the establishment of the first wartime ICT—the International Criminal Tribunal for the former Yugoslavia (ICTY)—international justice scholars continue to debate whether they can do so. Many realists and international law (IL) scholars remain skeptical, maintaining that ICTs simply face too many obstacles to deter atrocities, especially in war zones. Other realists are pessimistic, arguing that they might actually escalate civilian killings by giving combatants a reason to fight on in an attempt to secure the leverage they need to dodge international criminal prosecution. Liberals and some IL scholars are optimistic. In their view, so long as wartime ICTs secure prosecutorial support, then they can deter civilian suffering. This article demonstrates that none of these perspectives is entirely correct. Contrary to both realist perspectives, wartime ICTs can deter violence against civilians. However, it is actually far harder for them to do so than liberals have thus far recognized. Mainly, even with (1) prosecutorial support, wartime ICTs are only likely to deter violence against civilians by government and rebel forces that not only (2) seek liberal support for their core war aims, but also (3) maintain a centralized structure. Case studies of 14 combatant groups’ use of violence against civilians show that the ICTY only deterred violence against civilians when all three conditions were present. Hundreds of field interviews and contemporaneous documents support these findings. The record of the first wartime ICT thus has a lot to teach us about steps international actors can take to help alleviate civilian suffering.

The ECOWAS Community Court of Justice (ECCJ) is an increasingly active and bold international adjudicator of human rights violations in West Africa. Since acquiring jurisdiction over human rights issues in 2005, the ECCJ has issued several path-breaking judgments, including against the Gambia for the torture of journalists, against Niger for condoning modern forms of slavery, and against Nigeria for failing to regulate the multinational oil companies that polluted the Niger Delta. This article explains why ECOWAS member states authorized the ECCJ to review human rights suits by individuals but did not allow private actors to complain about violations of regional economic rules. In addition to explaining the ECCJ’s striking transformation, the article makes several other contributions. It illustrates how an existing international institution can be redeployed for new purposes; it highlights the contributions of civil society, supranational officials, and ECOWAS judges to expanding the Court’s mandate; it analyzes the ECCJ’s distinctive jurisdiction and access rules; and it shows how the ECCJ has survived challenges to its authority. Our analysis is based on original field research in Nigeria, including more than two-dozen interviews with judges, government officials, attorneys, and NGOs. We also draw upon the first-ever coding of all ECCJ decisions through 2010. The ECCJ’s transformation is also theoretically significant. The article’s final section and conclusion reassesses theories of regional integration, institutional change, and transnational legal mobilization in light of the ECCJ’s experience to demonstrate the implications of our findings for international institutions beyond West Africa.

International officials have repeatedly charged that international criminal tribunals (ICTs) undermine peace processes. Advocates of ICTs, however, have maintained that there can be no peace without justice. Ultimately, there is still much to learn about wartime ICTs’ actual impact on peace processes. This chapter addresses how the ICTY affected efforts to end the Bosnian War. Drawing on over 100 interviews with key stakeholders from the Bosnian peace process, along with recently declassified data from the Clinton administration, the chapter finds that ICTY played a key role in facilitating peace efforts. Among other things, the ICTY’s indictments strengthened mediators’ hand in implementing crucial participation decisions. Moreover, the ICTY helped parties to overcome commitment problems. The analysis suggests that the ICTY’s cautious approach to indicting top leaders during peace talks, coupled with the fact that lead mediators effectively exercised discretion over the arrest and transfer of suspects, both capture why the ICTY facilitated, versus undermined peace efforts

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This article explores the challenges that the International Criminal Court faces in apprehending war crimes suspects.