Trials and Errors: Principle and Pragmatism in Strategies of International Justice

Advocacy groups such as Human Rights Watch and Amnesty International have made a historic contribution to the cause of international human rights by publicizing the need to prevent mass atrocities such as war crimes, genocide, and widespread political killings and torture. ¹ However, a strategy that many such groups favor for achieving this goal—the prosecution of perpetrators of atrocities according to universal standards—risks causing more atrocities than it would prevent, because it pays insufficient attention to political realities. ² Recent international criminal tribunals have utterly failed to deter subsequent abuses in the former Yugoslavia and Central Africa. Because tribunals, including the International Criminal Court (ICC), have often been unable to gain the active cooperation of powerful actors in the United States and in countries where abuses occur, it is questionable whether this strategy will succeed in the long run unless it is implemented in a more pragmatic way.

Amnesties, in contrast, have been highly effective in curbing abuses when implemented in a credible way, even in such hard cases as El Salvador and Mozambique. Truth commissions, another strategy favored by some advocacy groups, have been useful mainly when linked to amnesties, as in South Africa. Simply ignoring the question of punishing perpetrators—in effect, a de facto amnesty—has also succeeded in ending atrocities when combined with astute political strategies to advance political reforms, as in Namibia.

The shortcomings of strategies preferred by most advocacy groups stem from their fundamentally flawed understanding of the role of norms and law in establishing a just and stable political order. Like some scholars who write about the transformative impact of such groups, these advocates believe that rules of appropriate behavior constitute political order and consequently that the first step in establishing a peaceful political order is to lobby for the universal adoption of just rules. ³ We argue that this reverses the sequence necessary for the strengthening of norms and laws that will help prevent atrocities.

Justice does not lead; it follows. We argue that a norm-governed political order must be based on a political bargain among contending groups and on the creation of robust administrative institutions that can predictably enforce thelaw. Preventing atrocities and enhancing respect for the law will frequently depend on striking politically expedient bargains that create effective political coalitions to contain the power of potential perpetrators of abuses (or so-called spoilers). ⁴ Amnesty—or simply ignoring past abuses—may be a necessary tool in this bargaining. Once such deals are struck, institutions based on the rule of law become more feasible. ⁵ Attempting to implement universal standards of criminal justice in the absence of these political and institutional preconditions risks weakening norms of justice by revealing their ineffectiveness and hindering necessary political bargaining. Although we agree that the ultimate goal is to prevent atrocities by effectively institutionalizing appropriate standards of criminal justice, the initial steps toward that goal must usually travel down the path of political expediency.

We begin by discussing the arguments of constructivist theorists of international relations who highlight the role of human rights groups in promoting normative change in international relations. They contend that norms define a "logic of appropriateness" that plays a central role in shaping the choices and actions that constitute a political order. ⁶ In contrast, we argue that the point of departure for strategies of justice must be the "logic of consequences," in which choices and actions are shaped by pragmatic bargaining rather than by rule following. We also briefly discuss a third approach based on the "logic of emotions," which captures the implicit assumptions underlying arguments in favor of supposedly cathartic truth commissions.

We then discuss the predictions that each of the three logics makes about the consequences of international tribunals, domestic trials, truth commissions, amnesties, and inaction (de facto amnesty) in the aftermath of atrocities. These...