Demystifying Political Violence: Some Bequests of ICTY and ICTR

Abstract

As Sara Kendall and Sarah M. H. Nouwen rightly notice, “legacy” is a big word, and it may be too soon even to begin to evaluate the legacies of the international criminal tribunals. Legacies are whatever future generations take from the tribunals. That, obviously, is in their hands, not the hands of the tribunals. So the question of legacies is more properly a question of bequests, and the inquiry must be a modest one: how do we evaluate the successes and failures of the tribunals in the here and now rather than the further future? Failures matter as well as successes, and as in science, failures can be as instructive and useful as successes. For example, many observers concluded that the tribunals, operating in The Hague and Arusha without an initial ground game in former Yugoslavia or Rwanda, were too far removed from the peoples who experienced the crimes; that perception helped motivate the movement toward hybrid tribunals. If that is right, the hybrid model counts amongthe “legacies” oftheInternational Criminal Tribunal for the Former Yugoslavia (ICTY)and the International Criminal Tribunal for Rwanda (ICTR), if only in the negative way that they exposed a problem the hybrids tried to remedy. As another example, Kendall and Nouwen remarkthat the impunity of the RPF has also become part of ICTR’s legacy. That too would be an instructive failure—instructive, in this case, as a foretaste of how difficult it is to prosecute cases against an intransigent government in power, a lesson that the International Criminal Court’s (ICC)troubles in Sudan and Kenya confirm.

Leaving Legacies Open-Ended: An Invitation for an Inclusive Debate on International Criminal Justice

“…David Luban identifies "bequests" of the ad hoc tribunals in at least five areas: making history; resisting denialism; demystifying sacred violence; reconciliation and peacemaking; and latitude for militaries. 19 Samuel Moyn explains why in his view the AJIL Symposium on the ad hoc tribunals has cancelled itself out as it moves "from creation story and doctrinal evolution to impact measurement amidst legacy rhetoric." 20 He argues that the AJIL Symposium forces readers to ask some fundamental questions about international criminal justice: Has the rise of "atrocity law" in our time been worth it?…”