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43
UN General Assembly, ˜˜De¬nition of Aggression™™ Resolution 3314(XXIX) (1974).
44
Conference on Security and Cooperation in Europe, ˜˜Helsinki Final Act,™™ August 1, 1975.
29
River of Justice

Expression. In 1978, the name was changed to Helsinki Watch, which
established civilian human rights monitoring groups that sought to amelio-
rate human rights violations by monitoring and reporting them. In 1988,
along with its af¬liates Americas Watch, Asia Watch, and Prison Watch, it
became Human Rights Watch. International nongovernmental organizations,
prominently but not exclusively represented by Amnesty International and
Human Rights Watch, agitated for states to respect individuals™ rights
through publicity campaigns and private diplomacy, drawing upon the 1948
Universal Declaration of Human Rights and subsequent human rights con-
ventions as the fountainhead of their legitimacy.
Uprisings of school children in Soweto in the summer of 1976 reinvi-
gorated international condemnation of the apartheid system in South
Africa, and the required twenty rati¬cations of the 1973 resolution against
apartheid brought it of¬cially into force. U.S. President Jimmy Carter
(1976“1980) embraced human rights as a major plank of his foreign policy,
explicitly calling upon Latin American authoritarian governments especially
to return to democracy and to cease the oppression of their populations.
In 1981, the General Assembly asked the ILC to restart its work on a draft
code of crimes. The General Assembly adopted an international Convention
Against Torture in 1985.45 As the 1980s wore on, the Cold War system began
to crack, and by 1991, it had disintegrated. The international lawyers who had
been working to consolidate international human rights, humanitarianism,
and criminal law under the shadow of the Cold War were about to enjoy a
con¬‚uence of opportunities and crises that vastly accelerated the current.


SWELLING STREAMS OF JUSTICE

During the Cold War, international concern over human rights burgeoned,
indicated especially by the ¬‚ood of nongovernmental human rights orga-
nizations. At the interstate and interbloc level, human rights concerns suf-
fered from politicization, as Western critics of East bloc violations could too
easily be criticized for using the subject as a political tool rather than being
genuinely concerned about victims of abuse, particularly given Westerners™
acceptance of similar depredations by their authoritarian allies. With the
end of the Cold War, that politicization receded in signi¬cance. Meanwhile,
the development of globalized international communications and the

45
UN General Assembly, ˜˜Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,™™ adopted and opened for signature, rati¬cation, and
accession December 10, 1984, entered into force June 26, 1987.
30 Building the International Criminal Court

increasing effectiveness of nongovernmental organizations in using these
technologies to publicize violations the world over enhanced the salience of
human rights issues.


Truth Commissions and ˜˜Lustration™™
Declining East“West polarization in the 1980s, combined with erosion of
corrupt authoritarian governments that had been propped up by the lar-
gesse of the United States and Soviet Union as they sought allies in their
ideological con¬‚ict, led to a series of transitions toward more democratic
governments in Latin America and Africa. From late in the decade through
the mid-1990s, Argentina, Brazil, Chile, South Africa, Chad, Uganda,
Guatemala, and El Salvador embarked on democratization adventures that,
with varying amounts of international support, included efforts to deal with
crimes of the old regimes. In somewhat different form, as the states of the
old Soviet bloc created new, more democratic governments, they too dealt
with old injustices, albeit much less broadly. In the East bloc, processes of
˜˜lustration,™™ opening the ¬les of the secret police and other government
bureaucracies, gingerly informed the public of the pervasiveness of the old
Cold War secret police penetrations of society, the high degree to which all
institutions of the state and society had been corrupted by political opera-
tions, and, at its most destructive, the extent to which trust in society,
neighbors, and friends had often been misplaced.46 In the African and Latin
American cases, more formal efforts, generally falling under the rubric
˜˜truth commissions,™™ were undertaken to separate the innocent from the
guilty, to expose the crimes, to ¬nd and rehabilitate the victims. This
stream, called transitional justice, ¬‚owed in parallel with, and in some
respects in contrast to, mainstream international legal traditions, but the
two shared a watershed, and norms from each ¬‚owed into the other.


Criminal Tribunals
While domestic transitions in many states included experiments with tran-
sitional justice mechanisms, major con¬‚ict enveloped another Cold War relic,
Yugoslavia. Progressively disintegrating since the death of Marshall Josip


46
˜˜Lustration™™ was the term given to a variety of measures that shared the characteristic of
opening to public view at least some of the Eastern European states™ secret activities aimed
at monitoring and subverting political activities and popular movements. Rosenberg, The
Haunted Land: Facing Europe™s Ghosts After Communism (1995).
31
River of Justice

Broz Tito in 1981, Yugoslavia no longer interested the Western powers as an
outpost of anti-Soviet socialism when the Cold War thawed. Without sup-
port from the West, without its old dictator, and in the midst of severe
economic decline, the Yugoslav state could not maintain its unity.47 With
political leaders whipping up nationalist fervor, Yugoslavia descended into
civil war. The same Western powers that had nonchalantly ignored Yugoslav
economic and social dissolution failed to muster a political-military response
to its political disintegration, and nationalist ethnic war raged. In 1993, the
UN Security Council ¬nally took what appeared to be a small and symbolic
step, creating the International Criminal Tribunal for the Former Yugoslavia,
mandated to prosecute Nuremberg-type crimes in the Yugoslav con¬‚ict. In
1994, when massive internal violence overtook Rwanda, the Security Council
again responded with a criminal tribunal, adopting essentially the same
structure and mandate as the ICTY, and sharing its prosecutor. What
appeared in 1993“1994 to be minor gestures toward international criminal
responsibility proved to be major steps in the intstitutionalization of inter-
national criminal law and important precedents for the ICC. In the 1990s,
two streams of justice converged: transitional justice from the wave of
democratizations and the Nuremberg-type justice in the ICTY and ICTR.
Both the truth commissions and the criminal tribunals sailed forth under
the banner inscribed ˜˜an end to impunity.™™ The ICTR and ICTY were
founded upon the Nuremberg principles and sought to apprehend, try, and
punish the perpetrators of war crimes, genocide, and crimes against
humanity.48 The tribunals changed the course of justice by expanding and
clarifying the Nuremberg crime de¬nitions, including raising to the highest
level of concern gender crimes such as rape and sexual slavery. Instituted
under the UN Charter™s (International Peace and Security) Chapter VII, the
tribunals asserted a connection between justice and peace.
In contrast, truth commissions were more experimental, more varied, and
less traditional. Testing new mechanisms and pursuing what had been at best
secondary objectives of standard judicial systems, they signi¬cantly broad-
ened the channels of justice, seeking to focus on victims instead of perpe-
trators in efforts to restore justice in society and to promote reconciliation
between perpetrators and victims of human rights violations.

47
Woodward, Balkan Tragedy: Chaos and Dissolution after the Cold War (1995).
48
Statute of the ICTY, UN Security Council Resolution 827 of May 25, 1993. The full name
of the ICTY is the ˜˜International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991.™™ The ICTR was established by UN Security Council
Resolution 955 of November 8, 1994, and its Statute was appended to the Resolution.
32 Building the International Criminal Court


Justice Paradigms
The Bible™s ˜˜eye for an eye™™ injunction suggests a proportionate law of
revenge. The common pattern of investigation, arrest, trial, and punishment
focuses legal mechanisms upon ¬nding and punishing transgressors, forcing
them to ˜˜pay their debt to society.™™ This kind of justice focuses on retri-
bution against those who disturb the social order: Commentators have
labeled it ˜˜retributive justice.™™
An alternative to retribution can be found in rituals that seek to mend
harm that has been done to victims by gaining perpetrators™ contrition,
enabling transgressors to accept responsibility for their crimes and to
reenter society by confessing guilt and paying penance. This ˜˜restorative
justice™™ paradigm is an alternative to retribution.
In historical and anthropological senses, it is probably wrong to call one
paradigm ˜˜old™™ and the other ˜˜new,™™ but dominant forms of justice in the
post“World War II period in developed countries are built around the
retributive model. Drives for penal reform, expanded concern with victims
¬rst in civil-law and then in common-law jurisdictions, and then the challenges
of transitional justice in the late 1980s and the 1990s brought restorative
justice into the mainstream. These two justice paradigms, the retributive
and the restorative, have converged into a set of demands and expectations
that were incorporated into the Rome Statute. To make it easier to refer to
them, I call these streams the ˜˜old™™ (retributive) and ˜˜new™™ (restorative)
paradigms.


The Old (Retributive) Justice Paradigm
Retributive justice in its modern form implies a theory of society, law, and
criminality. Retributive justice focuses on criminals and their crimes. Punish-
ment constitutes the criminal™s payment to society for infractions against
the community. Once society is thus compensated, the (former) criminal™s
relationship with society comes back into equilibrium. The crime is a crime
against order in society, a violation of law, not against victims per se.
Moreover, if punishment is proportionate to the crime, which it should be,
perpetrators lose whatever bene¬ts they sought to gain from their acts.
People who might otherwise consider embarking on crime should be
deterred by the knowledge that the bene¬ts didn™t outweigh the costs.
Enforcement and deterrence are coeval. In the criminal phase of judicial
proceedings, the prosecutor presses charges on behalf of the state; the vic-
tims are objects but not subjects of proceedings.
33
River of Justice

The New (Restorative) Justice Paradigm
Critics of retribution argue that the model is ¬‚awed for normal society, but
even more so for societies emerging from periods of oppression and large-
scale illegality. Mending transitional societies requires much broader efforts
than the perpetrator-focused retributive model attempts. Because criminal
authoritarian regimes victimize large numbers of people, reestablishing
justice should entail restoring victims to full membership in society, rec-
ognizing and compensating the wrongs done to them.49 Because large
numbers of people become perpetrators of crimes under such regimes “
particularly members of security forces “ transitional societies need a way to
rehabilitate them too. Because part of what needs to be set right in a
transitional process is the perversion of history that denied full personhood
to victims and whitewashed the crimes of the state, a full, fair, and inclusive
history of the old regime needs to be created. These elements “ victim
orientation, perpetrator rehabilitation, full exposure of history “ became the
core elements of the restorative justice movement.
The retributive“restorative dichotomy, in a conventional or a transi-
tional context, can be illustrated with the following chart:50


Traditional Justice (Retributive
and Rehabilitative) Restorative Justice
Victims are peripheral to the process. Victims are central to the process.
The focus is on punishing or on treating The focus is on repairing the harm
an offender. between an offender and victim, and
perhaps also an offender and a
wider community.
The community is represented by the Community members or organizations
state. take a more active role.
The process is characterized by adversarial The process is characterized by
relationships among the parties. dialogue and negotiation among the
parties.



The old justice paradigm pursues as its primary objective holding crimi-
nals accountable for their acts. The objective of accountability is the
opposite of permitting impunity “ allowing criminals to get away with

49
An indicator of the trend toward rethinking the role of victims in criminal proceedings was
a UN General Assembly, ˜˜Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power,™™ General Assembly Resolution 40/34 of November 29, 1985.
50
Daly, ˜˜Revisiting the Relationship between Retributive and Restorative Justice™™ (2000).
34 Building the International Criminal Court

their crimes. Even while transitional and restorative justice movements
developed, human rights advocates, such as those found in the leading
international nongovernmental organizations Amnesty International and
Human Rights Watch, sought to ˜˜end impunity™™ for violations of inter-
national criminal law. Human rights organizations generally have been
suspicious of justice mechanisms that diverge too far from the mainstream
of retributive justice because, with nonjudicial proceedings, they may not
uphold due process standards, they may contribute to impunity by leaving
perpetrators unnamed or by amnestying or pardoning perpetrators, and, in
their pursuits, they may taint evidence in ways that destroy its evidentiary
value in court. In short, retributive justice advocates fear that restorative
justice methods may contribute to impunity.

Transitional Justice Mechanisms
Some of the Nuremberg trials™ aims included what would now be called
transitional justice objectives. The Allies sought to demonstrate to the
German population, as well as the rest of the world, that those most
responsible for Nazi crimes could be separated from the general population
and punished.
In the transitions from authoritarianism in the 1980s and 1990s, ¬‚edgling
and restored governments implemented a range of justice mechanisms.51
The Nuremberg model didn™t easily ¬t the newer transitional contexts
because Nuremberg was made possible by absolute military conquest.
Negotiated transitions of power often left former leaders free, with parts of
their establishments intact and in power in government bureaucracies. In
some of the transitions, of¬cials of the old regimes were granted amnesties,
immunity from prosecution, or pardons. New rulers couldn™t act without
regard to the old power centers. In many cases, the police and judicial
systems were inherited from the old system and remained largely under the
control of people who had operated them before. They could not be
expected to carry out judicial processes against their former superiors. In
some of the transitional societies, judicial capacity was very limited, masses
of victims and large numbers of perpetrators would conceivably have
overwhelmed them.
Formal judicial processes might be the sine qua non of justice, but in
transitional situations they were often impractical. In Argentina, investi-
gations began, but the threat from the generals to the state was considered
so serious that proceedings were suspended. In Chile, Augusto Pinochet left

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