Thailand Law Journal 2011 Fall Issue 2 Volume 14

III. Frameworks for International Criminal Justice

While international criminal justice---if we narrow it down to the arena of war crimes tribunals--- clearly originated as a response to human rights atrocities, the motives underlying its emergence are the subject of    much debate. The argument divides around the essential protection of humanity from new crimes and harms which only a global justice response can satisfy, or a wider mandate employing international criminal justice to advance the dominant political hegemony. These motivations are not mutually exclusive, and in fact they are crucially interdependent if the protection of humanity is to devolve from persistent military intervention. The critics of this alliance suspect that the more independent aspirations for justice will be captured by a dominant political ideology designating the legitimate global community, and the citizens worthy of protection.¹³

A. International Criminal justice---A Genuine Humanitarian Response?

Proponents of this view hold that the phenomenon of international criminal justice and its practical manifestations are rooted genuinely in a universal desire to protect Human rights and to redress those that have been violated.¹⁴ Several of the dis­tinct justifications articulated by the Permanent Members of the Security Council such as China) for the creation of the International Criminal Tribunal for Yugoslavia (ICTY), when translated into general terms, can be seen to constitute the normative motivations behind international criminal justice viewed as a genuine humanitarian response.¹⁵ Even so, these general pronouncements are pregnant with complex and competing considerations to:¹⁶­
(a)  provide justice for the victims;
(b)  establish accountability for individual perpetrators;
(c)  facilitate restoration of peace;
(d)  develop an accurate historical record;
(e)  deter perpetration of atrocities elsewhere.

B. International Criminal Justice----A Politically Motivated Response

The contrary position, however, is that the commonly purported justifications above disguise less altruistic motivations--- ‘Surely, international criminal justice also tells another story, one that is at least more ambiguous, more fraught with power'.¹⁷ At the heart of this view is the disbelief that these reasons above provide an adequate answer to the question: 'why would states ever bother to create institutions that might end up turning against them ...?'.¹⁸

In support of a more sceptical stance, Megret and Scharf point to the fact that the ICTY was "remarkably under-funded'¹⁹ during its first years in operation, 'a toy in’ the hands of the great powers ... reined in whenever it showed signs of threatening the status quo'.²⁰ Yet despite these 'dismal beginnings',²¹ the judges of the ICTY have 'transform[ed] themselves into crusading diplomats';²² as such 'a thorough mix of liberal legalism and realist interest is what characterize[d] the emergence and consolidation of international criminal justice towards the end of the twentieth century'.²³ It remains to be seen 'how far international criminal justice's "own momentum" will take it' ,²⁴

Local and international criminal justice both are revealed through their institutions and processes as much as it may be in the normative aspirations for its outcomes. With international criminal justice, however, the aims of formal justice uncomfortably escape into the communitarian expectations commonly held by alternate justice forms. Debate about the appropriateness of this cross over, and the manner in which it challenges the formal/informal justice demarcation has characterised the rather limited analysis of international criminal justice's origination and development to date.²⁵

1. Formal Institutions at Work

As Scharf argues, '[i]t is one thing to create an international institution devoted to enforcing international justice; it is quite another to make international justice work'.²⁶ For some, that the ICC as the centrepiece of formal international criminal justice has no constabulary, no subpoena power and cannot sanction states directly in the event of non-compliance, may make this latter objective impossible to achieve.²⁷ Questionable enforcement capacity does not bode well for the proposed deterrent effect of the international tribunals and the ICC,²⁸ casting serious doubt on optimistic proclamations such as '[t]he real story of the new Court may actually be the crimes' which never take place' ,²⁹

For Colson, "[t]he starting point [in responding to this question] is to conceive of international justice as a process which in itself has significance, no matter what the expected outcomes of the process are'.³⁰ In general, international tribunals ensure that collective assignation of guilt is avoided.³¹ The overall effect then is one of; catharsis.³²

International criminal justice is also declared in national criminal law. Booth proposes that the function of an ICC trial will be 'first and foremost a proclamation that 'certain conduct is unacceptable to the world community'.³⁶ This proclamation has already been made, and continues to be made, with domestic legislation having been|[ enacted worldwide bringing the national criminal law of more and more countries into line with the Rome Statute. Each such enactment represents a step closer to Clapharn's 'trans-national legal order'.³⁷ Whether this translates into the internationalisation of criminal justice for a 'global' (as opposed to parochial) community remains to be seen.
 
2. Alternative Paradigms in the Gap
 
Certainly international criminal justice is not purely the domain of international| trial institutions and the processes which flow, or are purported to flow, from them. Expansive efforts to create an international criminal justice outside the framework of criminal prosecution are identifiable, the South African Truth and Reconciliation Commission (TRC) being a celebrated example. In the South African case, amnesty was offered in return for 'full disclosure of all the relevant facts relating to acts associated with a political objective'³⁸----as Dyzenhaus points out, this led some to believe that justice, seemingly being unlikely to be achieved given the continuing .J|A strength of the old regime, had been traded for the truth.³⁹ The opposing view is that justice was not negotiated, or sacrificed, but rather 'the way the TRC went about finding out the truth achieved a kind of justice different from---even superior to---''criminal or retributive justice',⁴⁰ namely restorative justice. While this latter view is arguably the more convincing of the two, perhaps its most pertinent point is the implied dichotomy of criminal/retributive justice and restorative justice.'

In any such analysis, the two seem to be posited as mutually exclusive, incapable of happy coexistence. In the context of international criminal justice, it has been established this dichotomy is false.⁴¹ A comparative exploration of the objectives underlying both the 'formal' institutional attempts at international criminal justice and the 'informal' community approaches shows, not only that the two can, with institutional transformation, coexist in a transitional context, but that there is also significant scope for restorative themes to be incorporated into the procedural framework of international trials.