Restraining the Barbarians: Can International Criminal Law Help?

I. Introduction

Civil armed conflicts are nasty, brutish, peculiarly intractable, and, these days, often long, even where one side is vastly stronger than the other. In earlier times, power asymmetries translated more readily into slavish submission, expulsion, or extermination of the weaker party. Today, the universalization of human rights as a kind of secular faith and a spreading (albeit by no means universal) conviction that gross violence within a country threatens the interests of other countries combine to inhibit that translation. Yet, it may nevertheless occur. Ask the Tutsis of Rwanda; that is to say, ask the remnant who survived.

Normative restraints on the exterminating use of force rise amidst a necropolis of losers. The dead are thereby honored, but, nevertheless, just as dead. If they are susceptible to comfort, then comfort they may have in the thought that their unintended sacrifice inspired the struggle to limit the play of ruthless power.

Today, the structure of constraining rules and principles is largely complete. It bans, admittedly with somewhat varying degrees of clarity, brute repression as a means for resolving group conflict. The great remaining task, far more arduous than norm-building, is enforcement. Over the decade, regional organizations and the United Nations, as well as ad hoc coalitions and individual states, have episodically tried to narrow the gap between norms and behavior by threatening or employing military and economic sanctions against pitiless governments and factions.

During the past decade, champions of a normative order, informed by commitment to protect the weak and foment peaceful settlement, have begun to invest hope in another enforcement vehicle, namely, criminal punishment of those who lead or serve delinquent forces. Its threat, were it to appear real, could affect the behavior of the agents of civil conflict regardless of whether greed or grievance drive them. The current extradition battle over Augusto Pinochet, ¹ the long-time Chilean dictator, and the recent treaty establishing a permanent International Criminal Court ² (ICC) are milestones in the accelerating effort to add penal sanctions to the humanitarians' armory. My task, I take it, is to describe, analyze, identify the obstacles to, and anticipate the consequences of this admirable, yet problematical, initiative.

II. Why Penal Sanctions?

The purposes of penal sanctions in international law are largely coextensive with those in national legal orders. In both, sanctions are generally presumed to deter criminal acts, to protect society against confirmed delinquents by isolating them, to reinforce the authority of violated norms and of the rule of law generally, to comfort victims and their kin, and, by doing public justice, to reduce recourse to the private variety. "[I]t has become an article of faith in the human rights community," Jonathan Bush, an American professor wrote in 1993, "that judicial processes are a critical tool in ending and preventing violations of international law. . . . [and in] providing catharsis, honoring victims, stigmatizing tyranny, restoring legality, 'bearing witness,' or otherwise having dignitary functions." ³ Exemplifying Professor Bush's observation, the human rights scholar/activist Jelena Pejic wrote five years later, on the eve of the diplomatic conference establishing the ICC: "It is recognized that human rights and the protections guaranteed under international humanitarian law will not be translated into practice unless potential offenders realize that a price for violations must be paid." ⁴ Yet, that is not all, she adds, for, in addition to its deterrent and protective value, the criminal process plays a key role in facilitating national reconciliation following civil armed conflicts. If there is no individual accountability for crimes, then victims will tend to impute criminality to the entire group from whose ranks the criminals sprang. ⁵

The virtuous effects identified with criminal law are more easily assumed than proven and, at the margins, at least, remain controversial. Scholars and practitioners of law debate the incidence and intensity of deterrence, the relationship in terms of crime reduction between deterrence and harsher sentences, the possibility and conditions of rehabilitation...