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51
Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (2002).
35
River of Justice

of¬ce having passed a full amnesty for himself and his cohorts. In
Guatemala and Chile, investigative commissions reported on the crimes of
the past, but they did not publicize the names of the criminals. In South
Africa, the negotiated transition produced the Truth and Reconciliation
Commission (SATRC). The SATRC could award amnesty to those who
committed ˜˜grave violations™™ of human rights on the condition that they
testi¬ed voluntarily and fully about their crimes, which had to have been
politically motivated. The idea was that testimony by some would motivate
(defensive) testimony by others, and thus a fuller record of the apartheid era
could be obtained than would be possible through trials, especially since the
justice system was compromised and inadequate.


Dilemmas of Transitional Justice
Peace versus Justice
Political pragmatists, particularly those engaged in seeking a cessation of
violence within societies or between them, often argue that justice in the
sense of a reckoning between perpetrators and victims can wait: What is
needed in the short run is peace, and peace may require political accom-
modation. What sense is there in engaging justice mechanisms when vio-
lence and instability continue? Dictators and warlords need a way out “ to
condemn them to trial will rigidify their resistance to political settlement.
Pardons and amnesties may be needed to gain peace.
Partisans of traditional justice accuse the pragmatists of opening the door
to impunity, sacri¬cing justice and accountability. The common wisdom of
transitional justice advocates is that some form of justice, by which they
mean the exposure of the perpetrators and the rehabilitation of victims of
oppression, is necessary for long-term peace within society, but they are
often stuck between those pursuing peace and those pursuing traditional
legal accountability. Transitional justice advocates generally seek a peaceful
transition of power and social stabilization, but accept the idea that blanket
amnesties or pardons amount to impunity, which perpetuates psychological
damage to victims and leaves residues of hostility that may motivate future
violence.
The examples of post-Franco Spain, in which a reckoning from the fascist
period has still not taken place; Cambodia, where twenty years after the mass
killings trial processes have yet to start; and Mozambique, where murderous
RENAMO (Mozambican National Resistance) factions were ultimately
amalgamated into coalition governments, are cited as cases demonstrating
the practicality of awaiting peace before pursuing justice. The 1996 Dayton
36 Building the International Criminal Court

negotiations, in which Yugoslav President Slobodan Milosevic was a primary
interlocutor, is another example of peace negotiations taking priority over
indictment of a war crimes suspect.
On the other hand, had the perpetrators of the Cambodian atrocities,
Mozambican depredations, or Yugoslav wars been certain of punishment
before they set out on their courses of action, would they have perhaps
demurred? Certainty of justice might promote peace “ it™s the creation of
certainty that™s the problem, and to create it requires major changes in the
operation, if not the nature, of international society. Tensions between
peace and justice remain.

Truth and Justice
Critics of traditional (retributive) justice mechanisms argue that courts
produce only partial truth, focused on perpetrators and their crimes. This
˜˜micro-truth™™ misses broader, social truths that are likely to help heal
societies.52 Micro-truth is fact-oriented and perpetrator-focused and deals
with witnesses and victims only to the extent necessitated to establish
perpetrators™ guilt. Restorative justice advocates argue that mechanisms
such as truth commissions can produce historical records that help reha-
bilitate victims and enable perpetrators to reenter society. Such truth
requires fuller contextualization, testimony by perpetrators and victims,
and other information that is normally irrelevant to traditional prosecution.
For transitional justice advocates, the establishment of a historical record
may trump traditional retribution as an objective, opening the way for the
use of amnesties if they can produce useful information as in South Africa™s
Truth and Reconciliation Commission.
In South Africa, 7,112 petitions resulted in only 849 amnesties, and
advocates regarded it as a stringent process. However, although the legal
alternative to being amnestied could have been prosecution in regular
courts, very few prosecutions took place, and large areas of the apartheid
regime™s misdeeds remained obscured even after the end of the SATRC. In
particular, while extensive exposure of policy activities followed from tes-
timony for amnesty by senior police of¬cials, South Africa Defense Force
records were never revealed, and defense of¬cials were not lured by the
amnesty offer. The highest-level prosecution, of former Defense Minister
General Magnus Malan, ended in acquittal in a trial viewed by critics as


52
Sachs, Fourth D. T. Lakdawala Memorial Lecture (New Delhi, December 18, 1998),
typescript text.
37
River of Justice

subverted by weak prosecution. Transitional justice in South Africa lauded
but sacri¬ced full accountability.53


END OF THE COLD WAR AND RESURFACING
OF INTEREST IN AN ICC

The late-1980s convergence of West and East bloc rhetoric about human
rights universality permitted restarting of ILC consideration of an interna-
tional criminal court, stimulated by rising concerns about transnational
crimes of all sorts “ signi¬cantly including the international drug trade as
experienced by Caribbean states. In 1989, Trinidad and Tobago Prime
Minister Arthur Robinson (who was trained as a lawyer and during 1972“87
had been the executive director of an NGO called the Foundation for
the Establishment of the International Criminal Court) proposed to the UN
General Assembly the ˜˜establishment of an international criminal court
with jurisdiction to prosecute and punish individuals and entities who
engage in, inter alia, the illicit traf¬cking in narcotic drugs across national
borders.™™54
Robinson drafted a motion for the General Assembly with the help of his
friend and longtime ICC advocate Robert Woetzel, former Nuremberg
prosecutor Benjamin Ferencz, and international criminal law expert Pro-
fessor M. Cherif Bassiouni, proposing that the ICC idea be studied by the
International Law Commission (ILC). On December 4, 1989, the General
Assembly adopted the motion requesting the ILC, when considering at its
next session the Draft Code of Offenses against the Peace and Security of
Mankind, ˜˜to address the question of establishing an international criminal
court or other international criminal trial mechanism with jurisdiction over
persons alleged to have committed crimes which may be covered under such
a code, including persons engaged in illicit traf¬cking in narcotic drugs
across national frontiers.™™55 The key phrasing was to ask the ILC to con-
sider a court or other mechanism to try crimes including, but not limited


53
The ideal of accountability may, however, simply not have been attainable. See Schiff, ˜˜Do
Truth Commissions Promote Accountability or Impunity? The Case of the South African
Truth and Reconciliation Commission™™ (2002), 325“44.
54
Glasius, The International Criminal Court: A Global Civil Society Achievement, 11; World
Leader Magazine, ˜˜Biography, Arthur N. R. Robinson™™ (1994).
55
UN General Assembly, ˜˜International Criminal Responsibility of Individuals and Entities
Engaged in Illicit Traf¬cking in Narcotic Drugs across National Frontiers and Other
Transnational Criminal Activities: Establishment of an International Criminal Court with
Jurisdiction over Such Crimes™™ (1989).
38 Building the International Criminal Court

to, illicit drug traf¬cking. This allowed ICC advocates to develop a proposal
much broader than one limited to drug crimes.
The outbreak of the post-Yugoslavia wars in 1991, followed by the
paralysis of an international machinery for con¬‚ict resolution and peace
enforcement, resounded through the international media in demands to the
major powers to do something about the con¬‚ict, especially as evidence
accumulated of large-scale attacks against civilian populations by army and
militia forces under the command of nationalist leaders.
Professor Bassiouni, a leading advocate and codi¬er of international
criminal law (and an author of the 1987 UN Convention Against Torture),
proposed and eventually became the head of a UN Commission of Experts
on the Situation in Yugoslavia.56 The Commission™s efforts, against great
political and material obstruction, led ultimately to the Security Council™s
creation in 1993 of the ad hoc Criminal Tribunal for the Former Yugoslavia,
the ¬rst international criminal tribunal since Nuremberg.
With subsequent creation in 1994 of the Rwanda tribunal, states over-
came their inhibitions to prosecute individuals suspected of international
crimes. The end of the Cold War permitted development of international
judicial institutions that previously had been rejected because of the fear
they would be used for political purposes by one ideological bloc against the
other.
Meanwhile, in 1993, the ILC prepared a draft ICC statute under the
direction of Special Rapporteur James Crawford.57 Professor Bassiouni
assembled an NGO Committee of Experts in Siracusa, Italy, to further
develop the draft, and the General Assembly considered it in 1994.58 With
questions and comments from states (very prominently including the United
States), the General Assembly sent it back for further consideration. The
General Assembly also directed that a preparatory committee begin meeting
to set the stage for a conference for ¬nal negotiation of a statute for the ICC
in 1998, to be held in Rome.
As the drafts for an ICC Statute moved toward the Rome Conference,
several streams of interrelated thought converged. After Nuremberg, indi-
vidual culpability, command responsibility, rejection of a ˜˜superior orders™™
defense, and the idea of crimes against humanity and crimes against peace
were mainstreamed. With the Declaration of Human Rights, activism of


56
Hazan, Justice in a Time of War: The True Story Behind the International Criminal
Tribunal for the Former Yugoslavia (2004), 46“7.
57
Glasius, op cit., 9.
58
Bassiouni, ˜˜Historical Survey 1919“1998™™ (1999), 20“31.
39
River of Justice

NGOs, and conventions against apartheid and torture, additional tributary
crimes joined the ¬‚ow.
NGO activists, lawyers, jurists, scholars, and other observers who had
participated in or observed transitional justice mechanisms at work chan-
neled their concerns for addition of victims™ rights, reparation, and recon-
ciliation into meetings that considered the objectives of the planned Court.
Still other NGOs interested in gender rights, gender crimes, and child sol-
diers and their conscription contributed even more issues to the mixture.
In the initially becalmed post“Cold War diplomatic environment, new
atrocities and growing international attention added momentum to what had
been the project of a small group of international lawyers to convert con-
ceptual agreement into generally accepted positive international criminal law.
The many streams of IHL, ICL, retributive, restorative, and transitional
justice poured into draft texts to be discussed and considered at formal and
informal meetings leading up to the Rome Conference. To the surprise of
many participants and observers, on July 17, 1998, the negotiators at Rome
broke through the ¬nal blockages to agreement, and their efforts enabled the
Rome Statute of the ICC to be opened for signature and rati¬cation.


EXPLAINING THE GATHERING TIDE

Describing the gathering stream of ideas about international criminal law as
the progress of a river enables the use of linked metaphors with some apt
characteristics. Obstructions, for instance the Cold War, temporarily hin-
dered the ¬‚ow, but as time went on, the current was restored. Tributaries,
such as restorative justice, added volume, but sometimes made it harder
to con¬ne the river within traditional banks “ the ˜˜softer™™ law of truth
commissions shares some objectives with traditional trial justice, but it isn™t
part of the old mainstream.
The metaphor helps illustrate but does not explain. For explanation, the
discussion needs to examine the motives and characteristics of human
action, individual and collective. Constructivist, realist, and neoliberal
institutionalist viewpoints help. The paramount challenge is to explain how
nonmaterial objectives without clear advantages for states as sovereign
actors could motivate those states to create an international organization. A
hard-edged national interest of powerful states cannot be shown to have
dominated these developments, nor did weaker states coalesce to counteract
the powerful. States were occasionally important, but what seems to have
propelled the ¬‚ow of international law to its convergence in Rome was a
gathering tide of ideas.
40 Building the International Criminal Court


Constructivists
For constructivists, the evolution of international law is evidence for the
existence of an international society and growth of collective norms that
rede¬ne national interests and lead to creation of new international insti-
tutions. Martha Finnemore and Kathryn Sikkink59 argue that norms emerge
as a consequence of norm entrepreneurs, gather adherents as a consequence
of norm leadership and, if they become generalized, move beyond a tipping
point to become a norm cascade, which leads to the internalization of the
norm as part of normal, expected behavior. International humanitarian law
norms have followed this pattern. By the time the ICC Statute negotiations
commenced, the norms were little in question; however, the range of the
rules and the mechanism for implementing them remained highly contro-
versial.


Realists
Realists generally view international law as an emanation of power, moti-
vated by the quest for relative gain, not by altruism or social consciousness.
A powerful state will push others to abide by laws that are to the advantage
of the hegemon and will ignore or oppose laws™ application to themselves;
therefore, law has no compelling quality and is simply a tool of politics and
power. Weak states will coalesce around laws designed to constrain the
powerful, but will throw them over should circumstances change.
The American structural realist school, exempli¬ed by Kenneth Waltz,60
argues that states are part of a system, but a system is not a society. States
are utility maximizers acting in an anarchic structure and thus will accede
only to arrangements from which they bene¬t in relative terms. They will be
willing at any moment to defect from a collective that no longer serves their
purposes. International law will have no compelling quality.
British realism is more moderate. International relations theorist Hedley
Bull, for example, argues there are three basic values all societies endorse “
freedom from violence, the dependability of contract, and stability of prop-
erty. Since all humans accept these norms, a form of human society “ that is,
a communal consciousness “ exists, beyond mere mechanical interaction.61

59
Finnemore and Sikkink, ˜˜International Norms and Political Change™™ (1998).
60
Waltz, Man, the State, and War: A Theoretical Analysis (1959); Waltz, Theory of
International Politics (1979).

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