Sherieff, Uzma --- "Weighing the Retributive Path to Peace" [2015] UNSWLawJlStuS 5; (2015) UNSWLJ Student Series No 15-05

---

WEIGHING THE RETRIBUTIVE PATH TO PEACE: THE VALUE OF PROSECUTIONS IN ATTEMPTS TO DO JUSTICE TO THE PAST AND FOSTER THE RULE OF LAW IN POST-CONFLICT SOCIETIES

UZMA SHERIEFF*

________________

‘We are all human and will never achieve perfect justice. But I believe that every time an extremist leader is tried in court and punished for ordering a massacre, or a military officer for burning a village, or a paramilitary thug for abusing a woman, the rule of law is strengthened and the chance that such behaviour will be repeated is diminished.’

- Madeleine Albright, former US Secretary of State.^[1]

‘By isolating and stigmatising those who commit war crimes or genocide, and removing them from the community, it will help to end cycles of impunity and retribution. Without justice, there is no reconciliation, and without reconciliation, no peace.’

- The Hon. Lloyd Axworthy, former Minister of Foreign Affairs, Canada, speaking on the establishment of the International Criminal Court.^[2]

________________

INTRODUCTION

As the scourge of war shows no signs of abating within human experience and examples of states debilitated by conflict remain as pertinent as ever, the task of managing post-conflict transitions towards peace and stability has assumed a primary place on the global agenda. The question of how best to manage such transitions, however, has appeared to follow rather than lead. Internationally-driven action in the field of post-conflict transitions to date has been dependent on generalised ideas of transitional justice, but core assumptions within this field remain unqualified and subject to critical debate. Not least amongst these is the value of criminal prosecutions in delivering the aims of transitional justice. Amidst an awakened global consciousness of the moral wrongs of impunity, ‘accountability’ has become the new paradigm for international action and ‘the rule of law’ the new catchphrase for what end is sought, with prosecutions claimed to deliver both. This paper seeks to examine whether this is indeed the case.

This paper will analyse the two critical assumptions underlying the endorsement of prosecutions as a central part of the international and domestic response to post-conflict transitions, those being:

1. That criminal prosecutions create the type of justice necessary for a society seeking to address the past and move forward; and,

2. That prosecutions, as a mechanism of norm-diffusion, can significantly foster the rule of law in post-conflict societies.

This paper will first examine the popular rise of prosecutions as a transitional justice mechanism since the end of the Second World War. It will be argued that an international proclivity towards establishing criminal tribunals as a preliminary transitional justice response stems from a set of assumptions as to their outcomes. The first primary assumption, concerning the value of trial justice in doing justice to the past, will be unpacked by exploring the value of retributive justice in meeting the needs of divided societies seeking both redress and reconciliation. It will be argued that prosecutions are able to deliver only a limited justice to post-conflict societies, and often fail to provide a standard of justice that is conducive to reconciliation and moving forward. In this sense, whether prosecutions, of themselves, can do justice to the past is highly questionable. This paper will then delve into the second, relatively unexplored assumption that prosecutions are able to effectively help foster the rule of law through norm diffusion. This paper will posit that transitional justice practice on this point is situated within excessively legalistic confines. Criminal accountability mechanisms are unlikely to simply deliver the ‘rule of law’, as fostering the rule of law requires a pluralist consideration of a number of factors beyond the law, legal institutions and legal justice. Accounting for these limitations would allow for a more realistic conceptualisation of criminal prosecutions and the contexts in which they may be of most value.

The case of international and eventually domestic criminal trials in Bosnia and Herzegovina (BiH) is highly informative to this analysis. This paper will utilise the example of the International Criminal Tribunal for the former Yugoslavia (ICTY), and the domestic trials it facilitated in Bosnia, to assess the contribution of criminal trials to justice and the rule of law in BiH since the 1990s, in the wake of the conflict emerging from the breakdown of the former Yugoslavia.

THE CRIMINAL TRIAL AS A POPULARISED TRANSITIONAL JUSTICE MECHANISM

The international arena has, since the end of the Second World War, seen a rapid and transformational shift in its approach to the arbitrary abuse of power and impunity. Where the exercise of state power was once a matter strictly within the confines of the sovereign state’s jurisdiction, the rise of international criminal justice and the erosive effects of globalisation on traditional sovereignty have seen such matters come increasingly under international scrutiny. In the wake of the horrors of the Second World War, the international community has become increasingly preoccupied with a new paradigm of ‘accountability’.^[3] In addition, reformative conceptions of non-traditional security have highlighted the flow-on risks posed to global security if states devastated by conflict remain fragile. As such, there has been a renewed interest in ‘statebuilding’, and in collectively managing or encouraging fragile post-conflict states’ transitions to stability, liberal democratic peace and the rule of law.^[4] The meeting point of these trends has been the popular rise of transitional justice and of the accountability norm.

A Accountability As a Global Norm

When faced with the timeless dilemma of how to recover stability in the aftermath of conflict, and what to do about prior perpetrations of grave crimes, the guiding normative principle has become that of ‘peace through justice’^[5] - utilising justice mechanisms to mend the divisions of the past and restore the societal requisites for peace, primarily by holding perpetrators of all levels to account for their acts. This trend, manifest in the proliferation of judicial accountability mechanisms, has been characterised by Lutz and Sikkink as the ‘justice cascade’.^[6] They argue that states are today increasingly persuaded by an international normative framework to comply with an expectation of dealing with human rights abuses of the past, typically by establishing formal judicial proceedings to mete out ‘justice’.^[7] Other scholars have argued that accountability remains a sporadic project, as the justice cascade is ‘evident in some places and not others’,^[8] and that rather than a cascade, it is instead a ‘justice balance’ that has developed, as questions of political expedience nevertheless often triumph over accountability.^[9]

However, this belies the degree to which the scales in the balance of global attitudes have tipped towards accountability. While the normative shift^[10] towards accountability is certainly ‘neither inexorable nor irreversible’,^[11] the significant rise in formal judicial proceedings to deal with perpetrators of mass atrocities and human rights violations in post-conflict settings speaks to the demand of victims and society at large to not let past atrocities be forgotten.^[12] Lutz and Reiger have documented, for example, the prosecution of at least 67 heads of state around the world between 1990 and 2008 for human rights abuses or corruption charges,^[13] with many more since.

This has been a demand on both an international and domestic judicial level. While the Nuremberg Tribunal after the Second World War broached new territory as the first modern example of prosecuting international crimes, the consolidation of the accountability trend was most clearly observed during the 1990s, during which the first ad hoc tribunals were created to criminally prosecute perpetrators of atrocities committed in the former Yugoslavia and Rwanda. In the case of the ICTY, the prosecutions began on an international level but with the intent of later inspiring domestic prosecutions of perpetrators when judicial capacity could be assured. Such relationships of complementarity between international and domestic judicial proceedings are increasingly common. For example, complementarity is at the core of the Rome Statute of the International Criminal Court (ICC). Furthermore, greater involvement of domestic courts in prosecuting serious crimes is more and more encouraged, as are ‘hybrid’ tribunals, ^[14] a trend which has been described as encapsulating the ‘localisation’ of international criminal justice. Indeed, moves by national governments to establish domestic accountability mechanisms in response to a global accountability norm are at the heart of Lutz and Sikkink’s ‘justice cascade’ argument. In analysing the value of ‘prosecutions’, this paper will thus be concerned with criminal trial mechanisms of both an international and domestic character, the two being reasonably intertwined in the current atmosphere of complementarity.

B Transitional Justice

The proliferation of criminal accountability mechanisms can be situated within the broader rise of transitional justice as a popular discourse. Mendez places transitional justice as emerging from the questions of the late 1980s in Latin America as to whether amnesty laws or criminal prosecutions were most appropriate in the aftermath of egregious abuses of power by deposed military dictatorships.^[15] Similar questions soon arose in post-Communist Europe and the African continent. Ruti Teitel provides a formative definition of transitional justice as ‘the conception of justice associated with a period of political change, characterised by legal responses to confront the wrongdoing of repressive predecessor regimes’.^[16] However, while this may have originally been the case, the concept has expanded significantly beyond this definition. What began as a discourse centred on the aftermath of authoritarian regimes has now broadened to concern itself with instability arising from internal and cross-border conflict generally.^[17] Furthermore, while Teitel refers to legal responses, transitional justice today encompasses not just legal mechanisms, but rather ‘the full range of processes...associated with a society’s attempts to come to terms with a legacy of large-scale past abuses in order to ensure accountability, serve justice and achieve conciliation’.^[18] Transitional justice is by no means a discourse limited to criminal trials; the range of other available mechanisms includes truth and reconciliation commissions (TRCs), reparations, lustration and vetting procedures, as well as newer mechanisms such as memorialisation. Truth-seeking has been particularly appraised, with frequent reference made to the supposed success of the South African Truth and Reconciliation Commission in addressing the wrongs of the apartheid era and establishing a historical record in a formalised but non-punitive setting.^[19] Similarly, the TRC established in Sierra Leone has received positive feedback in analytical circles for its claimed contribution to the nation’s post-conflict transition.^[20]

C Bases for Transitional Justice in Practice

Despite increasing scholarship and analysis in this field, however, transitional justice remains a relatively new discourse, widespread practice of which has paradoxically often preceded a solid theoretical underpinning. International engagement in numerous post-conflict settings, as geographically and contextually diverse as Afghanistan, Cambodia and Bosnia, has been premised on generalised ideas of what is necessary for a transitional society, rather than empirical understandings of what kind of mechanisms work best, and in which contexts. Admittedly, the success of transitional justice mechanisms is difficult to empirically measure, given the recent establishment of many of these measures and the need for long-term analysis to truly determine the success of a transition to stable and democratic peace. Analysis within this discourse is thus perhaps perpetually prone to the ‘generalisation of particular national experiences to universal norms’,^[21] and the global practice of transitional justice and accountability has very much reflected this. The relative success of prosecutions in Latin America and Rwanda, for example, is typically quoted as an example of the primary value of post-conflict criminal justice, while the success of the South African TRC is often championed by promoters of restorative justice over retributive justice. The empirical data to match these broad claims, however, remains forthcoming.^[22] As such, the pursuit of some transitional justice mechanisms over others by international actors or nation-states is at this point largely based on fundamental assumptions.

The question of which mechanisms work best in which contexts thus remains considerably unanswered. ^[23] The literature on this topic has offered both criticisms and solutions aplenty, but few of these have seen implementation into practice. Rather, transitional justice has for a long time been mired in the application of a set of processes and mechanisms across the board without differentiation as to contextual suitability.^[24] In light of an understanding that many failures of transitional justice processes can be attributed to a lack of localisation, there has been a positive normative shift away from this ‘one size fits all’ approach. ^[25] There is an increasing recognition that not all mechanisms might be suitable to achieving transitional justice ends in certain contexts.^[26] Further analysis of why popular transitional justice mechanisms are of value is deeply informative in establishing their contextual suitability and improving practical outcomes of their implementation in post-conflict societies. This paper is a critical analysis of the value of criminal prosecutions.

D The Popularity of Criminal Trials

In the current framework of transitional justice practice, there has been a broad trend towards establishing criminal trials on the presumption that they provide a successful model for engendering a stable post-conflict transition.^[27] Fletcher et al. speak of an assumption in both literature and practice that ‘a legal response should be the primary measure by which progress towards rebuilding societies torn apart by communal violence should be judged’.^[28] Calls for criminal accountability are typically made as an early response to initiating a transitional justice process.^[29] Fletcher and Weinstein argue that ‘while transitional justice scholars recognise that judicial and truth-seeking mechanisms constitute one important component of a response to mass violence’, the practice of diplomats and human rights advocates in recent decades suggests that many ‘conceive of international criminal trials as the centrepiece of social repair’.^[30]

This has led to a considerable amount of domestic and international funds, resources and expertise being channelled into prosecutions in recent decades,^[31] in the hopes of guiding transitions in Latin America, the former Yugoslavia, Cambodia, Sierra Leone and Rwanda, amongst others.^[32] Calls for justice to be done through the trial of individuals at the International Criminal Court further form part of the ‘rallying cry’ for prosecutions to deliver accountability.^[33] Zacklin argues that a prevailing link has been established between individual accountability and international peace and security.^[34] Such a link has been married with retributive international accountability mechanisms since the creation of the ad hoc tribunals and later the ICC in the 1990s.^[35] The Rome Statute, for example, directly relates the prosecution of grave crimes to the maintenance of the ‘peace, security and wellbeing of the world’ and to ending impunity,^[36] suggesting that prosecutions are able to contribute effectively to these ends. The ICTY foundational documents similarly expressly establish a link between peace and the justice that the ICTY seeks to provide.^[37] These are codifications of the widely held notion that determining individual accountability is an essential pathway to peace, an understanding that forms the basis of not only international criminal trials but also domestic criminal prosecutions such as those conducted by the War Crimes Chamber of Bosnia & Herzegovina.^[38]

Individual accountability can, of course, be determined through non-punitive means. For example, TRCs often call on perpetrators to acknowledge their crimes, and public identification in TRCs and lustration processes can be viewed as perpetrators being held to account to some degree. Notwithstanding this, individual accountability has primarily been conceived of through a criminal justice lens.^[39] Fletcher and Weinstein, in discussing this, suggest that the popularity of prosecutions as a post-conflict accountability response may stem from the initial promotion by legal scholars and activists of the goal of anti-impunity during the formative decades of the 1980s and 1990s.^[40] Resultantly, the global focus has fallen, in a negative sense, upon the achievement of anti-impunity through the punishment of perpetrators by legal means.

It is already questionable whether post-conflict criminal prosecutions can truly achieve anti-impunity. Beyond this, however, the ascription of broader peace objectives to criminal prosecutions raises critical questions as to whether trials can effectively achieve these either. Weighing these questions is particularly important when scholars have noted that ‘the emphasis on criminal trials overshadows attention to other options to achieve these same goals’,^[41] those being other transitional justice mechanisms. It is paramount to effective transitional justice policy and practice that the successes of criminal prosecutions, but also their limitations, are understood in the context of the range of existing mechanisms.

Expectations of trial justice have broadly expanded such that the value of criminal prosecutions as a transitional justice measure has been misconceptualised.^[42] Trials are certainly able to deliver a form of justice that is important to societies seeking to deal with their divided pasts, and moreover have some deterrent and norm diffusion value in fostering respect for the law and anti-impunity. Indeed, this paper does not seek to deny the important role that criminal trials can play as part of the post-conflict process. However, criminal prosecutions’ ability to deliver well-rounded outcomes of ‘justice’ and ‘the rule of law’ is considerably limited. By themselves, trials are unable to offer a constructive pathway to peace. This reality presents a stark contrast to the aspirations of the international community in its practice thus far.^[43] There is limited empirical evidence to qualify such aspirations as to the effectiveness of criminal trials, and Fletcher et al. argue the presence of a research gap in this area.^[44] The two key assumptions that underlie the international proclivity to call for post-conflict criminal prosecutions are that criminal trials deliver the type of justice that is a requisite for societies attempting to do justice to the past, and that prosecutions are able to engender values that positively develop the rule of law. This paper will explore and weigh both of these assumptions in turn.

PROSECUTIONS AND DOING JUSTICE TO THE PAST

It is widely argued that societies seeking to move forward from conflict, division and a legacy of abuse must make efforts to address their past.^[45] Stromseth et al. highlight that ‘atrocities cast a long shadow’ which, if not grappled with, can impede not only immediate social reconstruction and governance in the wake of conflict, but moreover long-term cohesion, reconciliation and the prevention of the recurrence of atrocities.^[46] Elizabeth Kiss similarly writes that ‘just as wounds fester when they are not exposed to the open air, so unacknowledged injustice can poison societies and produce the cycles of distrust, hatred and violence we have witnessed in many parts of the world.’^[47] The necessity of looking to the past is of course debatable; however, the normative shift towards accountability has ascribed a fundamental importance to dealing with the past, and this paper will view it as a central goal of transitional justice.^[48] Ensuring accountability is argued to be crucial in post-conflict societies so that victims are better placed to move on from atrocities suffered, perpetrators face some reckoning and a shared understanding of the truth is brought to light and memorialised for society’s healing;^[49] in essence, that justice should be done.^[50] The question of how best to ensure accountability and do justice to the past is not easily answered, however.^[51] Between different models of retributive, restorative and reparative justice, for example, victims’ needs are addressed to varying degrees and the direct impact of each model on reconciliation goals further differs.

Notwithstanding the growth in analysis of restorative justice mechanisms,^[52] particularly since the oft-cited success of the South African TRC, Lambourne writes that ‘the Western, liberal tradition of accountability for crimes promotes an adversarial, retributive model of formal legal justice’.^[53] This has shaped a conception that criminal prosecutions are an effective model for attempting to do justice to the past.^[54] Comparisons are often made to the effects of lustration laws passed in Eastern and Central European countries, for example, to suggest a lack of tangible results from that accountability mechanism, and a subsequent failure of justice to be done in the absence of prosecutions for jus cogens crimes.^[55] The core function of post-conflict criminal justice is to bring individual perpetrators to account by way of fair and impartial proceedings. Proponents of trial justice typically argue, from a rights-based approach, that prosecution is the ‘only real way to remove the stain of impunity from traumatised societies’.^[56] They argue that criminal trials can effectively establish the truth about the past through an authoritative and impartial record^[57] and provide essential redress for victims of atrocities by punishing perpetrators.^[58] In this way, it is argued that criminal trials can deliver the ‘justice’ that divided societies require to heal and move forward. This type of justice is Janus-faced, in that it is both backward- and forward-looking.

The argument emanates from the emphasis that has been placed in recent decades on the relationship between peace and justice, a question that has divided scholars and practitioners in the field for decades.^[59] The relationship is often framed as a dichotomy of peace versus justice, in light of difficult choices that can arise from the possibility of successfully negotiating and fostering peace or insisting upon strict justice;^[60] however, Bassiouni argues this to be a ‘fallacious’ dichotomy, claiming that the ‘attainment of peace is not necessarily to the exclusion of justice, because, frequently, justice is necessary to attain peace.’^[61] However, Renner suggests that ‘justice’ in this sense is simply an ‘empty universal’ - a powerful word that focuses discourses, but ultimately has a vague and unspecific content that demands contextualisation if it is to have any meaning.^[62] The immediate difficulty, then, is how criminal trials can be expected to deliver effective ‘justice’ when the meaning of justice is highly contextualised and varies from case to case. If, as Mani suggests, ‘peace without justice is only a symbolic peace’,^[63] what can alternatively be said of a symbolic justice?

Criminal trials are limited in their ability to do justice to the past in post-conflict societies in a manner that is conducive to peace, chiefly due to a) the questionable foundations of retributive justice as a means of healing societies, b) the selective nature of criminal justice and c) the difficulty of establishing a shared perception of ‘justice’ in divided societies.

A The Value of Retributive Justice

At the heart of criminal trials in the post-conflict setting is the idea that through retributive justice, society and victims are offered an opportunity to be compensated for injustices suffered, primarily by seeing the perpetrators of crimes individually receive the punishment warranted by their actions. This is inherently tied to the notion of ‘just deserts’, which Malamud-Goti considers simply to be that ‘we must pay for what we [have done]’, without regard to consequences but solely to the act of transgression itself.^[64] Wang traces this formulation of retributive justice back to Kant, who advocated for strict retributivism in the face of atrocities in war.^[65] The Kantian formulation suggests that ‘retribution is intrinsically just, requiring no further goals’.^[66] However, if this is the case, then Wang highlights that retributive justice is necessarily purely backward-looking,^[67] and does not directly and intrinsically serve the achievement of future-based goals concerning social reconstruction by this understanding. Furthermore, the strict standard of Kant’s formulation would suggest that we must insist on punishing all perpetrators for their respective crimes, even to the extent that this may prove unconstructive for social stability^[68] – ‘let there be justice, though the world perish’. This poses critical questions as to the value of retributive justice; while defenders of criminal trials would argue the moral necessity of punishing crimes, in a transitional context broader reconstructive goals are always present and require consideration. This is not to justify a lack of prosecutions, but rather to acknowledge a fundamental limitation of retribution to provide not only backward-looking justice but also forward-looking healing that emanates from the process. While Malamud-Goti’s notion of goal-oriented retributivism might reconcile this dilemma by redirecting retribution so as to contribute to democratic goals,^[69] this poses further issues, as perpetrators start to become a means to an end, further conflicting with Kant’s categorical imperative.^[70] McAuliffe reiterates this view, arguing that ‘product- or goal-oriented values...may compel the politicisation of a trial with a “conviction at all costs” mentality diametrically opposed to the type of neutral, apolitical criminal justice rule of law reconstructors attempt to cultivate’.^[71] If this is to be avoided, the ability of retributive justice to do justice to the past while looking forward is questionable.

B Criminal Justice is Selective and Limited

Notwithstanding the considerable funds and resources that have been channelled into post-conflict criminal prosecutions in recent decades, criminal trials are limited projects by nature of being large-scale and expensive. Zacklin examines the ‘heavy bureaucratic structure’ of the ICTY and the International Criminal Tribunal for Rwanda (ICTR), for example, arguing that the expenditure on the Tribunals thus far has not visibly matched timely and expeditious justice, and has led to donor fatigue.^[72] The difficulty of obtaining enough resources to see a post-conflict criminal justice project through from its beginning to end has meant that criminal trials are necessarily selective and focused.^[73] This has generally been acknowledged as a limitation from the outset. The Rome Statute, for example, restricts the jurisdiction of the Court to only the ‘most responsible’, highest-level perpetrators, following the pragmatic precedent set by the ICTY and the Nuremberg Tribunal before it. As a result, Stromseth notes that despite aspirations, not all perpetrators in post-conflict settings can be apprehended and not all cases tried, leading to only a ‘partial and imperfect justice’.^[74] Criminal trials, of themselves, leave a considerable ‘justice gap’ where mid-level and lower-level offenders do not fall within the practical or jurisdictional reach of the accountability system,^[75] and instead remain in the community to the detriment of victims, such as in the case of Sierra-Leone.^[76] The lack of a comprehensive reach of criminal prosecutions engenders a host of legitimacy and perception issues amongst victims and societies alike that undermine on-the-ground understandings of whether justice has been done, as will later be explored. Scholars are increasingly recognising that alternative accountability processes are necessary to fill the gap left by traditional criminal justice, particularly through reparative or restorative mechanisms.^[77]

Furthermore, where perpetrators do fall within the resource-based and jurisdictional reach of criminal prosecutions, they may nonetheless evade prosecution, particularly internationally, due to inherent ‘power realities’^[78] and shirking the authority of the trial mechanism. Such has been the case with a significant number of high-level perpetrators at the ICTY. For example, Fletcher et al. write that Slobodan Milosević’s long-standing repudiation of the ICTY and ultimately the failure of his trial to be completed created pervasive claims that justice had been denied to victims in the societies of the former Yugoslavia, to many symbolising the failure of the Tribunal as an accountability mechanism.^[79]

Trials are further limited in the range of parties they involve; the United Nations has recognised that while successful transitional justice requires open consultation with all interested parties, victims are typically given a limited place in criminal trial procedure.^[80] Clark argues that in the ‘harsh realities of the trial process’, ‘victims’ needs are at best marginal’.^[81] This includes the experience of being faced with a cold courtroom environment, and being required to relive trauma by way of cross-examination, which may serve to increase animosity towards perpetrators rather than sentiments of reconciliation.^[82] As such, it has been argued that justice to the past is frequently not done by retributive trials in the eyes of victims, whose perspective on this is arguably the most crucial in a transitional context. The inherent limitations and selectivity of trial justice should thus be deeply considered when weighing the capacity of criminal prosecutions to do justice to the past in post-conflict societies moving forward.

C Divided Perceptions of Justice

Finally, the assumption that criminal trials can deliver a well-rounded and reconstructive sense of ‘justice’ fails to acknowledge the complexity of justice itself, and the difficulty that arises when perceptions of justice are not shared between divided groups in post-conflict societies. Much has been made of the essential relationship between truth and justice, and the important contribution that trials can make in establishing an impartial and thus legitimate judicial record of truth.^[83] The notion that post-conflict trials can ascertain facts and establish the truth may stem from popular early writings of scholars such as Orentlicher,^[84] who argued in relation to the Latin American transitional justice scene that ‘the most authoritative rendering of the truth is possible only as a result of judicial inquiry, and major prosecutions can generate a comprehensive record of past violations’.^[85] While the superior placement of TRCs to establish records of the truth has been argued since,^[86] truth-seeking has nonetheless been placed at the heart of numerous major war crimes tribunals’ mandates. However, this is a return to the dilemma of justice as an empty universal – just as ideas of what constitutes the ‘truth’ vary according to who is asked, what constitutes ‘justice’ is similarly divergent, and Clark argues that justice is a ‘contested concept’ with ‘no uniform or universal meaning’.^[87] Criminal trials can necessarily only recognise one representation of truth in establishing a judicial record with a high evidentiary standard. Where this truth is disputed by distinct groups within society, it is difficult to consider that justice has been seen to be done, and with transitional justice so closely hanging on issues of legitimacy, it must be questioned whether justice has then effectively been done at all.^[88]

Divided perceptions of justice can be identified as a significant issue in the case of the ICTY in its attempts to do justice to the past for former Yugoslavian countries. The ICTY, which was established in the midst of the breakdown of the Socialist Federal Republic of Yugoslavia (SFRY) in 1994, has sought to restore peace and reconciliation between divided ethnic groups in the region by providing accountability and justice for atrocities that were committed during the war.^[89] However, ongoing divisions in the region between Serbs, Croats and Bosnian Muslims have stymied the effectiveness of the justice the Tribunal has claimed to deliver. Akhavan, who argued that the ICTY would ‘contribute to interethnic reconciliation by telling the truth about the underlying causes and consequences of the Yugoslav tragedy’, also acknowledged that any factual record the ICTY created would not contribute to justice and reconciliation if the record was not ‘recognised and internalised by the peoples of the former Yugoslavia’.^[90]

This internalisation has largely failed to occur; the version of the truth which the ICTY has perpetuated through its judgments is frequently disputed between the various ethnic groups of the region, each of which considers itself to have been the primary victim of the conflict.^[91] This issue has also since pervaded the perceptions of domestic war crimes trials in Bosnia and Herzegovina, Serbia and Croatia. Serbs in particular have disputed the findings of the Tribunal for alleged anti-Serb bias, claiming ‘victor’s justice’.^[92] Clark writes, for example, of the case of Naser Oric, former commander of the Army of BiH, who was indicted for murder and cruel treatment.^[93] His sentence of two years’ imprisonment and immediate release was considered just by his Bosnian-Muslim supporters, but Serbs denounced the decision as a ‘fundamental injustice’ on the basis of lenient treatment.^[94] Similarly, the Gotovina appeal judgment in 2012 caused significant waves; ^[95] the acquittal of Croatian generals Ante Gotovina and Mladen Markac on a drastically divergent ruling to the Trial Chamber’s previous judgment was viewed by Croatians as a just and long-awaited result, while Milanovic writes that in Serbia, the judgment only confirmed the ‘perpetual victim narrative’, pushing the region further away from truth or reconciliation.^[96] This ‘perceptions gap’, as Donini names it,^[97] has illustrated that despite efforts to deliver a unifying narrative and justice through truth, criminal prosecutions in divided societies may be faced with the limitation that conceptions of ‘truth’ and ‘justice’ often differ.

The value of criminal trials in attempts to do justice to the past is thus limited; although retributive justice is an important element of addressing the past, its ability to look forward is questionable. The selectivity and divided perceptions of criminal justice further hinder justice being done and being seen to be done.

PROSECUTIONS AND FOSTERING THE RULE OF LAW

This paper will now turn to the second assumption that has thus far provided a basis for criminal prosecutions as a key transitional justice measure: that trials are able to significantly foster the rule of law in post-conflict societies.

The ‘rule of law’ has in many ways become the new panacea for post-conflict settings. It appears to be the common element called upon by the disparate groups that engage in development, from human rights advocates and economists to security analysts and legal practitioners. Rajagopal writes that developing the rule of law has since the 1990s been considered the ‘surest guarantee against the resurgence of conflicts and the basis for rebuilding societies.^[98] Indeed, international actors and practitioners, as evidenced by the earlier remarks of former US Secretary of State Madeleine Albright, seamlessly incorporate the term when justifying reconstructive policy. In such justifications, the meaning of ‘the rule of law’ has become assumed, just as the concept has been assumed into the machine of post-conflict transitional practice. In reality, however, what constitutes the ‘rule of law’, what value there is in prioritising it in post-conflict transitional practice and how best to foster it are all considerably debated questions with far from concrete answers.^[99]

Criminal accountability has been justified as being able to lay the ground for a transitional society seeking the values of the rule of law.^[100] Holding perpetrators accountable by way of criminal trials is argued to affect the rule of law primarily by way of norm diffusion; by delegitimising criminal acts or abusive regimes, deterring future violations and reinstituting a broader faith within society for legal processes and stability, ^[101] retributive accountability, it is argued, is crucial to lay a clean slate and remove the scourge of impunity. However, Stromseth et al. highlight the surprising lack of analysis as to evidence-based outcomes in this field. Where the effects of criminal accountability born of the ‘justice cascade’ have actually been examined, Stromseth et al. argue that although trial mechanisms may do much for standards of international justice, it is a weak assumption that they may have an impact on strengthening the domestic rule of law in a post-conflict society.^[102] Perhaps due to the difficulty of obtaining long-term results of what is a recent trend, the value of prosecutions in fostering the rule of law remains a question that significantly requires further empirical research and analysis. This paper will propose, however, that some key truths have emerged as to the ability of criminal trials to act as a norm diffusion mechanism, and further about the place of court law in attempting to foster the rule of law. I argue that although prosecutions can contribute to fostering some elements of the rule of law, this requires that they maintain legitimacy and outreach functions such that the effects of trial justice can be internalised within a post-conflict society. With this considered, however, trial justice goes only a very limited way to truly fostering the rule of law – doing so ultimately requires thinking of the rule of law beyond a framework of law and legal justice, and considering how non-legal spheres have a necessary role in shaping rule of law cultures.

A Laying the Ground for the Rule of Law in Post-Conflict Settings

Weighing whether prosecutions are valuable in efforts to foster the rule of law in post-conflict societies requires a preliminary understanding of what the rule of law is. While this remains the subject of a debate spanning centuries, there are some elements of the rule of law that can be identified as fundamental if one considers what transitional justice and post-conflict statebuilding projects are trying to achieve. Richard Fallon argues that competing conceptions of the rule of law proposed by theorists and legal philosophers share three definitional understandings: ‘the rule of law serves to protect people against anarchy; to allow people to plan their affairs with confidence because they know the legal consequences of their actions; and to protect people from the arbitrary exercise of power by public officials’.^[103] A society which espouses these values and perpetuates them through legitimate and efficient courts, fair laws, efficient but conscious security forces and a grounding respect for human rights is the end-state that transitional policymakers generally hope for.^[104] One can add to the concept a respect for the dignity of members of society, accountability and protection under the law for all members of society irrespective of power and the confidence that politically charged questions will be dealt with fairly.^[105] While the rule of law may entail more meanings beyond this, if criminal trials are to have an effect on the rule of law then these are the core elements they are usually aimed at fostering.

The above formulation falls in line with a substantive, thicker understanding of the concept, which posits that the rule of law is more than formal and structural components and involves values to some degree. While the rule of law as conceived of in a thin, minimalist understanding has its own merits, I argue that transitional justice discourse and practice strives towards a substantive rule of law that still has a considerable focus on structural institutions. This in itself is problematic; Stromseth et al. suggest, for example, that we have seen an overly simplistic conflation of formal and substantive rule of law conceptions that has generated an assumption that democratic norms will diffuse from institutions and practices, such as judicial reform, accountability mechanisms and legal advocacy support, once they are established in a checklist-type manner.^[106]

Criminal trials as a post-conflict accountability mechanism may certainly be able to diffuse some important values or messages for post-conflict societies. Disempowering perpetrators of past atrocities inevitably creates better conditions for the fair and respectful exercise of power, much in the way of removing ‘spoilers’ for peace, as lustration and vetting practices also do. Doing so can also ‘reassure the population that old patterns of almost total impunity and exploitation are no longer tolerable’,^[107] and trials have some deterrence value.^[108] Teitel considers the usefulness of trial accountability in delegitimising an abusive predecessor regime and legitimising a successor regime in the eyes of society members, helping lay the basis for a new liberal order.^[109] Criminal trials that emphasise due process and timely and efficient justice can also help set expectations and standards as to what society members can expect from the law, and fundamentally, ‘that justice can be fair’.^[110]

The capacity of criminal trials to shape any of these norms is limited, however, on the basis that what may work in fostering the rule of law in one post-conflict setting may not work as well in another. The rule of law is ultimately as contextual a concept as justice, and local traditions and history have a profound impact on how attempts to foster the rule of law are received.^[111] This applies to all transitional justice mechanisms that seek to foster the rule of law. More specifically for criminal trials, however, the ability of trials to diffuse norms crucially rests on issues of legitimacy and outreach to populations.

B The Importance of Legitimacy and Effective Outreach

Although trials can shape some elements of the rule of law in post-conflict settings through norm diffusion, this is significantly dependant upon the credibility of the proceedings in the eyes of the population.^[112] Stromseth writes that if trial proceedings are viewed as biased or ineffective, prosecutions may be counterproductive, as they may send the message that justice is not fair, that important grievances are failing to be addressed and that previous patterns of impunity are continuing.^[113] This can engender distrust of public institutions rather than encourage it. Given the necessarily selective and limited nature of criminal justice, the possibility of negative outcomes is considerable, particularly in the case of international trial proceedings. As such, it is imperative that practitioners engage in effective outreach and capacity-building programs to bolster the legitimacy of trial proceedings from their outset, as this is difficult to re-establish once missed. This has been illustrated in the experience of the ICTY in its attempts to have a positive impact on the rule of law in states of the former Yugoslavia.

The ICTY from its inception has been faced with a difficult task with regard to its domestic impact. The conflicts of the breakdown of the former Yugoslavia were interwoven with longstanding historical cultural narratives and strongly pitted ethnic groups against each other, such that each deeply identified with the legitimacy of one side of the conflict on the basis of self-defence and ethnic vulnerability, and each claimed victim status for that position.^[114] The legitimacy of the institution has hung on its handling of these cultural understandings. While the ICTY has attempted to navigate the issues of cultural narratives by carefully laying bare the legal truth, Ford argues that the varying legitimacy of the ICTY between Bosniak, Croatian and Serbian groups in BiH and Serbia today is born of the fact that ICTY prosecutions, by nature of who was indicted with the most serious crimes, have run directly counter to the dominant Serbian narrative of victimhood, and in confirmation of the ethnic Bosniaks’ internal narrative of assigning blame to Serbs.^[115] For example, the indictment of all of the major Serb leaders during the conflict but the lack of indictment of Croatian President Tudjman has encouraged claims of anti-Serb bias.^[116] As a result, support for the Tribunal amongst ethnic Serbs in the region is alarmingly low, while the contrary can be said for ethnic Bosniaks.^[117] Ford argues that questions of legitimacy based on competing narratives have ultimately posed significant hurdles for the Tribunal in its hopes of diffusing norms of fair and equal justice in the region.

Much of this has likely been exacerbated by the lack of effective outreach by the ICTY, which was a low priority in the Tribunal’s early process.^[118] Stromseth argues that the Tribunal’s failure to promote an understanding of its operations and purpose in Serbia ‘in crucial earlier phases’ led to distortions and disinformation becoming embedded in popular thought and manipulated by nationalist politicians, which ultimately undermined the ‘demonstration effects’ of the Tribunal as to delivering justice. ^[119] The effects of capacity-building efforts by the ICTY in local judiciaries has similarly been a case of ‘too little too late’ – Stromseth argues that despite some efforts to support the work of the Bosnian War Crimes Chamber, for example, questions of fairness and impunity were left unaddressed from the outset, and the trial process has ultimately exacerbated divisions and mistrust of institutions rather than built confidence born of diffused norms.^[120] The case illustrates how the polarising capacity of trial justice may lead groups in divided societies to deny the legitimacy of courts and fail to internalise norms that criminal trials seek to diffuse. In the absence of timely and effective outreach programs and strategies to promote legitimacy, the genuine capacity of criminal trials to shape elements of the rule of law through norm diffusion may thus be critically limited.

C The Rule of Law Beyond Courts and Institutions

When considering the relationship between criminal trials and the rule of law, in this final part of this paper I argue that even where trial justice is able to diffuse some norms, the notion that trials are able to significantly and comprehensively foster the rule of law belies the complexity of the rule of law. Much of the literature on attempts to foster the rule of law in post-conflict societies focuses on international and domestic efforts towards judicial and institutional reform and capacity-building.^[121] Considerable resources and attention have been given in transitional settings to strengthening courts, reforming laws and, pertinent to this paper, establishing criminal accountability mechanisms in the aftermath of conflict; such can be seen, for example, in the international transitional justice project in Kosovo.^[122] The dominant ‘aphoristic sense that law is a prerequisite for peace’ of which Mani speaks^[123] has manifested in the placement of law and legal institutions at the heart of post-conflict rule of law development. It appears that there is considerable reliance on an expected ‘trickle down’ effect of substantive values from formal legal institutions, and an understanding that the rule of law is shaped by the relationship between society members and the law. Indeed, from a Durkheimian perspective, the law is a formative basis for a stable society in that it expresses morality and defends social relations.^[124] Legal institutions are a central part of this function, and their ability to diffuse values and norms could certainly justify an important place in rule of law development. Raz wrote, for example, that ‘courts, tribunals and other judicial bodies are the most important example of primary organs’ that can apply norms that ultimately shape the rule of law.^[125] However, it is argued here that ascribing too much centrality to legal institutions in rule of law development is unconstructive, and misconceptualises the place of ‘law’ within ‘the rule of law’.

Stromseth et al. write that ‘for the rule of law to exist, more is needed than courthouses and statutes’, as the rule of law could reasonably exist in a society without either of these.^[126] This aptly suggests that the rule of law relies on other determinants beyond norm-applying legal institutions. Indeed, ‘justice’ as a value is not inherent in legal institutions, for criminal accountability mechanisms to transfer to societies in a one-way, replicated diffusion process; rather, justice is shaped by the societies that receive it by nature of being a contextual concept.^[127] As such, fostering the rule of law appears to be about creating a rule of law culture that actively values those institutions and the forms of justice they espouse,^[128] such that a post-conflict society is able to receive and internalise norms that legal institutions perpetuate. The difficulty in creating this culture from a policy perspective is clear when one considers failures in Afghanistan and Kosovo, to name two examples, to successfully embed a cultural value for legal institutions and legal justice within a post-conflict society. When considering how this might possibly be achieved, criminal trials may certainly be a means to developing this culture, as already argued. However, as Stromseth et al. highlight, they are not the only means, nor are they ‘even the most effective means’ at times of achieving the rule of law as an end.^[129] Instead, legal institutions such as criminal accountability mechanisms are generally ‘insufficient’ to create the requisite cultural change that fostering the rule of law entails.^[130]

Popular policy justifications for criminal trials as promoters of the rule of law perpetuate an excessively legalistic idea of how to foster a rule of law culture. By Shklar’s account, legalism entails the viewing of legal processes as distinct from social and political disciplines and circumstances - ‘fencing legal thinking off from contact with the rest of historical thought and experience’.^[131] Viewing transitional justice and its relationship to the rule of law through a courts-based lens may have this ‘fencing off’ effect, sidelining the role that other spheres play in the rule of law process. For example, what of the role of sociology and economic development in understanding the process behind shaping rule of law cultures?^[132] Law does not operate in isolation to society and social processes; rather, as Sally Falk Moore would argue, society has a controlling influence over the law that it is important to recognise.^[133] Fundamental understandings about societies may ultimately determine the effectiveness of criminal accountability to diffuse rule of law values as much as the legitimacy and strong character of these legal institutions do. As such, where trial mechanisms and court law do not or cannot engage with such non-legal understandings that include history, economic culture and unique sociological make-up, their capacity to truly influence a cultural shift may be questionable. Stromseth et al. argue that this is a key limitation of accountability processes, and that transitional justice discourse has been held distinct from fundamental debates as to rule of law development for too long, with too much assumption in practice and not enough systematic thinking and empirical research. ^[134] Broadening understandings of what the rule of law entails to adopt a more pluralist view may shed light on the limited success thus far of criminal trials and court law to significantly shape ‘the rule of law’.^[135] While criminal trials are valuable tools to shape some values of the rule of law, assuming that they can significantly deliver the rule of law ascribes too broad an objective to these institutions, and makes the ‘law’ an encompassing determinant of ‘the rule of law’, whereas an array of non-legal spheres and processes may be similarly valuable.

CONCLUSION

Examining the value of criminal prosecutions in post-conflict transitional justice is important when one considers the extent to which criminal trials have been accepted as a key tool within what is sometimes called the ‘toolkit’ of transitional justice practice. This paper has argued that two fundamental assumptions as to the value of prosecutions, firstly in attempting to do justice to the past and secondly in fostering the rule of law, warrant a deeper examination and are ultimately imperfect assumptions. While prosecutions do have value in delivering an important form of retributive justice and norm diffusion that may be constructive for societies in transition, the ascription of broad and significant peace objectives to criminal trials expects too much from these institutions, and explains some disappointment at their shortcomings in recent history, as illustrated in the case of the ICTY in the former Yugoslavia.

McEvoy emphasises that transitional justice is today a discourse still in transition.^[136] Acknowledging not only the successes but also the limitations of key strategies such as criminal trials increasingly suggests that a better cohesion of transitional justice practices is required. Lambourne, for example, reinforces the importance of complementarity of strategies between retributive and restorative justice models, such that gaps created by the limitations of one strategy are countered by the strengths of another.^[137] Clark also argues that if justice is truly to contribute to a lasting peace and the rule of law, ‘it must be understood in a broader sense than as purely retributive’,^[138] and as not belonging to courts and legal institutions alone. Criminal accountability functions in a highly contextual sphere, and understanding post-conflict societies better for their unique histories, predispositions and understandings of ‘justice’ and the law may further improve decisions as to the suitability of trial justice to particular societies. All of this goes towards practising a ‘thicker’ concept of transitional justice.^[139]

Ultimately, this paper suggests a more conscious approach to implementing trial mechanisms in the hopes of laying the groundwork for peace and the rule of law, and reiterates the need for further systematic analysis beyond an institutional focus. The observations of Judge Learned Hand in 1944 are worth considering here: ‘[l]iberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it’. This perhaps says too little of the value of legal institutions and trial justice. However, it highlights the complexities of effecting change and transition in the hearts and minds of individuals in post-conflict societies, and ultimately encourages a re-evaluation of the much-assumed place of legal justice in reconciliation and long-term peace.

---

* Research Thesis completed towards a Bachelor of Laws/Bachelor of International Studies at the University of New South Wales (20[1]5). I thank Professor Martin Krygier and Associate Professor Adam Czarnota for their invaluable supervision, support and comment towards this piece.

¹ Madeleine Albright (Speech delivered at the inaugural Madeleine K. Albright Global Justice Lecture, The Hague, 17 June 2015).

^[2] Hon. Lloyd Axworthy (Speech delivered at United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 15 June 1998).

^[3] See Ellen Lutz and Kathryn Sikkink, ‘The Justice Cascade: The Evolution and Impact of Foreign Human Rights Trials in Latin America’ (2001) 2(1) Chicago Journal of International Law, 1-34; Ruti Teitel, Transitional Justice (Oxford University Press, 2000).

^[4] Francis Fukuyama, ‘The Imperative of State-building’ (2004) 15(2) Journal of Democracy 17.

^[5] See M. Cherif Bassiouni, ‘Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights’ in M. Cherif Bassiouni (ed.), Post-Conflict Justice (2003).

^[6] Lutz and Sikkink, above n 3, 4.

^[7] Pádraig McAuliffe, Transitional Justice and Rule of Law Reconstruction: A Contentious Relationship (Routledge, Abingdon, 2013) 2.

^[8] Jo-Marie Burt, ‘Accountability After Atrocity in Peru’ in Nicola Palmer, et al., Critical Perspectives in Transitional Justice (Intersentia, 2012) 122.

^[9] McAuliffe, above n 7, 3.

^[10] Teitel considers a ‘normative shift’ to be a ‘paradigm shift in the conception of justice’, embodied in the attitudes of legal practitioners and the people towards accountability and the law: see Ruti G. Teitel, above n 3, 215-223.

^[11] Burt, above n 8, 122.

^[12] See Bassiouni, above n 5, 2.

^[13] Ellen L. Lutz and Caitalin Reiger, Prosecuting Heads of State (Cambridge University Press, Cambridge, 2009), cited in Burt, above n 8, 121.

^[14] Consider, for example, the War Crimes Chamber of the Court of Bosnia and Herzegovina, which was established as a hybrid/internationalised justice mechanism but intended to later develop into a domestic court – Claire Garbett, ‘Localising Criminal Justice: An Overview of National Prosecutions at the War Crimes Chamber of the Court of Bosnia and Herzegovina’ (2010) 10(3) Human Rights Law Review 561.

^[15] Juan E. Mendez, ‘Recent Trends in Transitional Justice’ (Marek Nowicki Lecture delivered at the Helsinki Foundation for Human Rights, Warsaw, 10 November 2010).

^[16] Ruti Teitel, ‘Transitional Justice Genealogy’ (2003) 16 Harvard Human Rights Journal 69.

^[17] Hun Joon Kim, ‘Transitional Justice: Politics of Memory and Reconciliation’ in Erica Resende and Dovile Budryte, Memory and Trauma in International Relations: Theories, Cases and Debates (Routledge, Abingdon, 2014) 31.

^[18] Kofi Annan, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc S/2004/616 (23 August 2004).

^[19] See Hugo van der Merwe, ‘Prosecutions, Pardons and Amnesty: the Trajectory of Transitional Accountability in South Africa’ in Nicola Palmer, et al., Critical Perspectives in Transitional Justice (Intersentia, 2012) 443. Van der Merwe argues that although South African victims were largely disappointed with the TRC’s ability to deliver justice, the TRC maintained domestic and international credibility for being seen to make an ‘honest effort to deliver on its promises’.

^[20] Michal Ben-Josef Hirsch, Megan MacKenzie and Mohamed Sesay, ‘Measuring the impacts of truth and reconciliation commissions: Placing the global ‘success’ of TRCs in local perspective’ (2012) 47(3) Cooperation and Conflict 394.

^[21] Ruti Teitel, Transitional Justice (Oxford University Press, 2000) 3.

^[22] See, for example, Ben-Josef Hirsch, MacKenzie and Sesaya, above n 17; David Mendeloff, ‘Truth-Seeking, Truth-Telling and Post-Conflict Peacebuilding: Curb the Enthusiasm?’ (2004) 6 International Studies Review 355-380.

^[23] See Chandra Lekha Sriram and Valerie Arnould, ‘Pathways of Impact: How Transitional Justice Affects Democratic Institution-Building’ (2014) Impact of Transitional Justice Measures on Democratic Institution-Building Policy Paper 1.

^[24] See Laurel E. Fletcher, Harvey M. Weinstein and Jamie Rowen, ‘Context, Timing and the Dynamics of Transitional Justice: A Historical Perspective’ (2009) 31 Human Rights Quarterly 170.

^[25] Martien Schotsmans, ‘Blow Your Mind and Cool Your Heart’: Can Tradition-Based Justice Fill the Transitional Justice Gap in Sierra Leone?’ in Nicola Palmer, et al., Critical Perspectives in Transitional Justice (Intersentia, 2012) 263.

^[26] Fletcher, Weinstein and Rowen, above n 24, 207.

^[27] Laurel E. Fletcher and Harvey M. Weinstein, ‘Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation’ (2002) 24(3) Human Rights Quarterly 577-578.

^[28] Fletcher, Weinstein and Rowen, above n 24, 166.

^[29] Ibid. 164.

^[30] Fletcher and Weinstein, above n 27, 578.

^[31] Jane E. Stromseth, ‘Justice on the Ground: Can International Criminal Courts Strengthen Domestic Rule of Law in Post-Conflict Societies?’ (2009) 1 Hague Journal on the Rule of Law 88.

^[32] Mendez, above n 15.

^[33] Ibid. 575. One must of course question whether such a ‘rallying cry’ does not hope to affect international justice more than domestic post-conflict justice: see Stromseth, above n 31.

^[34] Ralph Zacklin, ‘The Failings of Ad Hoc Tribunals’ (2004) 2 Journal of International Criminal Justice 541.

^[35] See, for example, the advocacy of M. Cherif Bassiouni in 1994 for international criminal mechanisms to establish truth and justice for the past in the former Yugoslavia and beyond: M. Cherif Bassiouni, ‘United Nations Commission of Experts Established Pursuant to Security Council Resolution 780’ (1994) 88(4) American Journal of International Law 784.

^[36] Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) preamble (‘Rome Statute’).

^[37] SC Res 808, UNSCOR, 3175^th mtg, UN Doc S/Res808 (22 February 1993).

^[38] See Bogdan Ivanisevic, The War Crimes Chamber in Bosnia and Herzegovina: From Hybrid to Domestic Court (International Center for Transitional Justice, 2008).

^[39] Consider, for example, the discomfort of the drafters of the Rome Statute when considering the place of non-judicial accountability mechanisms in the scheme of complementarity, which they eventually excluded: Darryl Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ (2003) 14(3) European Journal of International Law 481.

^[40] Fletcher and Weinstein, above n 27, 584.

^[41] Ibid.

^[42] Ibid.

^[43] Ibid.

^[44] Fletcher, Weinstein and Rowan, above n 24, 167-168.

^[45] See, for example, Mendeloff, above n 22, 355; Elmar G.M Weitekamp et al., ‘How to deal with mass victimisation and gross human rights violations: A restorative justice approach in U. Ewald and K. Turkovic (eds.), Large-Scale Victimisation as a Potential Source of Terrorist Activities (IOS Press, 2006).

^[46] Jane E. Stromseth, David Wippman & Rosa Brooks, Can Might Make Rights? Building the Rule of Law After Military Interventions (Cambridge University Press, 2006) 249.

^[47] Elizabeth Kiss, ‘Moral Ambition Within and Beyond Political Constraints’ in Robert I. Rotberg and Dennis Thompson, Truth v. Justice: The Morality of Truth Commissions (Princeton University Press, 2000) 72.

^[48] See Elmar G.M Weitekamp et al., above n 45, 218.

^[49] Ibid.; see also M. Cherif Bassiouni, above n 35, 805.

^[50] McAuliffe, above n 7, 125.

^[51] Stromseth, above n 31, 88.

^[52] See, for example, the work of John Braithwaite in the international application of restorative justice: John Braithwaite, ‘Restorative Justice and a Better Future,’ in Eugene McLaughlin et al, Restorative Justice: Critical Issues (Sage Publications, 2003).

^[53] Wendy Lambourne, ‘Transitional Justice and Peacebuilding after Mass Violence’ (2009) 3 International Journal of Transitional Justice 30.

^[54] Ibid.; Stromseth, et al., above n 46, 250; Fletcher and Weinstein, above n 27, 638.

^[55] See, for example, M. Cherif Bassiouni, ‘Accountability for Violations of International Humanitarian Law and Other Serious Violations of Human Rights’ in M. Cherif Bassiouni (ed.), Post-Conflict Justice (2003) 3.

^[56] Stromseth, et al., above n 46, 250.

^[57] Fletcher and Weinstein, above n 27, 586.

^[58] Ibid.

^[59] See Payam Akhavan, ‘Are International Criminal Tribunals a Disincentive to Peace?: Reconciling Judicial Romanticism with Political Realism’ (2009) 31 Human Rights Quarterly 625.

^[60] See Darryl Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ (2003) 14(3) European Journal of International Law 481.

^[61] M. Cherif Bassiouni, above n 5, 4.

^[62] Judith Renner, ‘A Discourse Theoretic Approach to Transitional Justice Ideals’ in Nicola Palmer, et al., Critical Perspectives in Transitional Justice (Intersentia, 2012) 60.

^[63] Rama Mani, ‘Conflict resolution, justice and the law: Rebuilding the rule of law in the aftermath of complex political emergencies’ (1998) 5(3) International Peacekeeping 10.

^[64] Jaime Malamud-Goti, ‘Transitional Governments in the Breach: Why Punish State Criminals?’ (1990) 12(1) Human Rights Quarterly 6.

^[65] Shaina P. Wang, ‘Transitional Justice as Retribution: Revisiting its Kantian Roots’ in Nicola Palmer, et al., Critical Perspectives in Transitional Justice (Intersentia, 2012) 34.

^[66] Rhiana Chinapen and Richard Vernon, ‘Justice in Transition’ (2006) 39(1) Canadian Journal of Political Science 118, quoted in Wang, above n 65, 35.

^[67] Wang, above n 65, 36.

^[68] Wang, above n 65, 47.

^[69] Malamud-Goti, above n 64, 3-13.

^[70] Wang, above n 65, 40.

^[71] McAuliffe, above n 7, 124.

^[72] Zacklin, above n 34, 543.

^[73] Stromseth et al., above n 46, 255.

^[74] Stromseth, above n 31, 90.

^[75] Ibid.

^[76] See Martien Schotsmans, Blow Your Mind and Cool Your Heart’: Can Tradition-Based Justice Fill the Transitional Justice Gap in Sierra Leone?’ in Nicola Palmer, et al., Critical Perspectives in Transitional Justice (Intersentia, 2012) 273-274.

^[77] Stromseth et al., above n 46, 256.

^[78] Akhavan, above n 59, 630.

^[79] Fletcher, Weinstein and Rowan, above n 24, 166.

^[80] Kofi Annan, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc S/2004/616 (23 August 2004). The State Parties to the Rome Statute attempted to address this issue by establishing a Victim’s Counsel in ICC proceedings to specifically represent victims; however, this is an anomaly in criminal accountability proceedings.

^[81] Janine Clark, ‘The Three R’s: Retributive Justice, Restorative Justice and Reconciliation’ (2008) 11(4) Contemporary Justice Review: Issues in Criminal, Social and Restorative Justice 333.

^[82] Ibid.

^[83] Fletcher and Weinstein, above n 27, 587.

^[84] See Fletcher and Weinstein, above n 27, 587.

^[85] Diane Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100 Yale Journal 32.

^[86] See, for example, Alison Smith et al., ‘Closing the Gap: The role of non-judicial mechanisms in addressing impunity’ (Report, No Peace Without Justice, 2010) 31.

^[87] Clark, above n 81, 332.

^[88] Ibid. 332.

^[89] See Rachel Kerr, ‘Peace Through Justice? The International Criminal Tribunal for the former Yugoslavia’ (2007) 7(3) Southeast European and Black Sea Studies 3.

^[90] Payam Akhavan, 1998, quoted in Clark, above n 81, 335.

^[91] Clark, above n 81, 335.

^[92] Clark, above n 81, 337.

^[93] Prosecutor v Naser Oric (Trial Judgment) (International Criminal Tribunal for the former Yugoslavia, Trial Chamber II, Case No. IT-03-68-T, 30 June 2006).

^[94] Clark, above n 81, 337.

^[95] Prosecutor v Ante Gotovina and Mladen Markac (Appeal Judgment) (International Criminal Tribunal for the former Yugoslavia, Appeal Chamber, Case No. IT-06-90-A, 16 November 2012).

^[96] Marko Milanovic, ‘The Gotovina Omnishambles’, EJIL:Talk! (19 November 2012) <http://www.ejiltalk.org/the-gotovinaomnishambles/> (accessed 18 June 2015).

^[97] Antonio Donini, ‘Knocking on Heaven’s Door: Meeting Social Expectations in Post-Conflict Transitions’ in Banar, E. (ed.), Combating Serious Crimes in Post-Conflict Societies: A Handbook for Policymakers and Practitioners (US Institute of Peace Press, 2006) 35; see also Kerr, above n 87, 379.

^[98] Balakrishnan Rajagopal, ‘Invoking the Rule of Law in Post-Conflict Rebuilding: A Critical Examination’ (2008) 49 William and Mary Law Review 1346, considering the arguments of Thomas Carothers.

^[99] See Brian Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004) 114.

^[100] See Stromseth et al., above n 46, 253, 255-256.

^[101] See Stromseth et al., above n 46, 250-251.

^[102] Ibid. 253.

^[103] Richard H. Fallon, ‘’The Rule of Law’ as a Concept in International Discourse (1997) 97 Columbia Law Review 7, cited in Stromseth et al., above n 46, 69-70.

^[104] Stromseth et al., above n 46, 69.

^[105] Kofi Annan, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, UN Doc S/2004/616 (23 August 2004).

^[106] Stromseth et al., above n 46, 74.

^[107] Stromseth, above n 31, 92.

^[108] Consider the ICTY Trial Chamber’s statement in its judgment in the Krstic case that ‘’Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act”: (Prosecutor v Radislav Krstic (Appeal Judgment) (International Criminal Tribunal for the former Yugoslavia, Appeal Chamber, Case No. IT-98-33-A, 19 April 2004).

^[109] Teitel, above n 21, 28-29.

^[110] Stromseth, above n 31, 92.

^[111] Mani, above n 63, 7.

^[112] Stromseth, above n 31, 92.

^[113] Ibid. 93.

^[114] Stuart Ford, ‘A Social Psychology Model of the Perceived Legitimacy of International Criminal Courts: Implications for the Success of Transitional Justice Mechanisms’ (2012) 45 Vanderbilt Journal of Transnational Law 412-413.

^[115] Ibid. 416.

^[116] Stromseth et al., above n 46, 269

^[117] Ford, above n 114, 414.

^[118] Stromseth et al., above n 46, 265.

^[119] Ibid. 269.

^[120] Ibid. 267.

^[121] Ibid. 179.

^[122] See Wendy Betts, Scott N. Carlson and Gregory Gisvold, ‘The Post-Conflict Transitional Administration of Kosovo and the Lessons Learned in Efforts to Establish a Judiciary and Rule of Law’ (2001) 22 Michigan Journal of International Law 371-389.

^[123] Mani, above n 63, 2.

^[124] See Adam Czarnota, ‘Transitional Justice in Post-Communist Central-Eastern Europe’ in Nicola Palmer, et. al., Critical Perspectives in Transitional Justice (Intersentia, 2012) 434.

^[125] Joseph Raz, Practical Reason and Norms (1990) 134-7, quoted in Jeremy Waldron, ‘The Concept and the Rule of Law’ (2008) 43(1) Georgia Law Review 21.

^[126] Stromseth et al., above n 46, 328.

^[127] See Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law and Society 423. McEvoy suggests that ‘lawyers, policy makers and state officials often appear to think of justice as belonging to the institutions which make up a justice system’.

^[128] Stromseth et al., above n 46, 310.

^[129] Stromseth et al., above n 46, 329.

^[130] Ibid. 314.

^[131] Judith Shklar, Legalism (1963) 2, quoted in Kieran McEvoy, ‘Beyond Legalism: Towards a Thicker Understanding of Transitional Justice’ (2007) 34(4) Journal of Law and Society 415.

^[132] Consider, for example, the work of Amartya Sen, who has long championed the interdependence of various spheres of development, arguing that success in development within a particular sphere, such as economic development or legal development, ‘may not be confined only to institutions and policies in that sphere’: Amartya Sen, ‘What is the role of legal and judicial reform in the development process?’ (2000) World Bank Legal Conference 10.

^[133] Sally Falk Moore, ‘Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study’ (1972) 7(1) Law & Society Review 719.

^[134] Stromseth et al., above n 46, 253.

^[135] Ibid.

^[136] McEvoy, above n 131, 439.

^[137] See Lambourne, above n 53, 33.

^[138] Clark, above n 81, 333.

^[139] McEvoy, above n 131, 439.