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Trials and Tribulations of International Prosecution

Edited by Henry F. Carey and Stacey M. Mitchell

There have been many political dilemmas that impose structural constraints on the effort to legalize, judicialize, and criminalize normatively deviant behavior in international politics. The annual costs of these tribunals has peaked at approximately $400 million, of which $140 million is allocated to the ICC, the latter now having spent $1 billion in its first decade of existence. What has been the track record of these international criminal courts with jurisdiction to try heads of states and leading official and military officers? Has the domestic political will of states increased to prosecute their own leaders, following the ICC’s complimentary jurisdiction? How have powerful states supported these courts and how have they undermined them?

In succeeding in punishing a number of high-profile cases, the tribunals arguably constitute what Habermas called communicative action that expresses the aspirations and nascent norms of international society. Beyond the confines of a specific of international cooperation, these courts are increasingly becoming norm entrepreneurs, defining the norms of coexistence among states, such that internal atrocities are seen not only as international crimes, but threats to the stability and order of international society. These courts are also redefining the attributes of what states must practice to preserve their reputations, a breach of which will prove increasingly costly. The tribunals are increasingly incentivizing and mobilizing informational networks from NGOs, IGOs, and states to document and publicize violations of international criminal law, thereby increasing exposure risks of perpetration. To be sure the patchwork of compliance and norm communication is fraught with double standards, hypocrisy, selective enforcement, and neoimperial delegitimation of the subaltern. Still, what has begun as institutions created in the absence of humanitarian action by the powerful may come to constitute normal state attributes similar to sovereignty, whose violation will be seen as not only illegitimate, but also meriting humanitarian action to correct and punish such behavior. The question remains whether ongoing impunity of both the powerful and the powerless will undermine or limit this potential.

Lexington Books

Pages: 362 • Trim: 6½ x 9¼

978-0-7391-6940-7 • Hardback • February 2013 • $120.00 • (£92.00)

978-1-4985-1511-5 • Paperback • May 2015 • $62.99 • (£48.00)

978-0-7391-6941-4 • eBook • February 2013 • $59.50 • (£46.00)

Subjects: Law / International, Political Science / General, Political Science / International Relations / General, Political Science / World / African, Political Science / Developing Nations, Social Science / World / Africa, Law / Humanitarian Law

Trials and Tribulations of International Prosecution

Hardback

Paperback

eBook

Summary

There have been many political dilemmas that impose structural constraints on the effort to legalize, judicialize, and criminalize normatively deviant behavior in international politics. The annual costs of these tribunals has peaked at approximately $400 million, of which $140 million is allocated to the ICC, the latter now having spent $1 billion in its first decade of existence. What has been the track record of these international criminal courts with jurisdiction to try heads of states and leading official and military officers? Has the domestic political will of states increased to prosecute their own leaders, following the ICC’s complimentary jurisdiction? How have powerful states supported these courts and how have they undermined them?

In succeeding in punishing a number of high-profile cases, the tribunals arguably constitute what Habermas called communicative action that expresses the aspirations and nascent norms of international society. Beyond the confines of a specific of international cooperation, these courts are increasingly becoming norm entrepreneurs, defining the norms of coexistence among states, such that internal atrocities are seen not only as international crimes, but threats to the stability and order of international society. These courts are also redefining the attributes of what states must practice to preserve their reputations, a breach of which will prove increasingly costly. The tribunals are increasingly incentivizing and mobilizing informational networks from NGOs, IGOs, and states to document and publicize violations of international criminal law, thereby increasing exposure risks of perpetration. To be sure the patchwork of compliance and norm communication is fraught with double standards, hypocrisy, selective enforcement, and neoimperial delegitimation of the subaltern. Still, what has begun as institutions created in the absence of humanitarian action by the powerful may come to constitute normal state attributes similar to sovereignty, whose violation will be seen as not only illegitimate, but also meriting humanitarian action to correct and punish such behavior. The question remains whether ongoing impunity of both the powerful and the powerless will undermine or limit this potential.

Details

Lexington Books

Pages: 362 • Trim: 6½ x 9¼

978-0-7391-6940-7 • Hardback • February 2013 • $120.00 • (£92.00)

978-1-4985-1511-5 • Paperback • May 2015 • $62.99 • (£48.00)

978-0-7391-6941-4 • eBook • February 2013 • $59.50 • (£46.00)

Subjects: Law / International, Political Science / General, Political Science / International Relations / General, Political Science / World / African, Political Science / Developing Nations, Social Science / World / Africa, Law / Humanitarian Law

Author

Henry F. Carey is associate professor of political science at Georgia State University in Atlanta. He is the author most recently of Privatizing the Democratic Peace: Policy Dilemmas of NGO Peacebuilding (2012) and Reaping what you Sow: A Comparative Examination of Torture Reform in the United States, France, Argentina, and Israel (2012), editor of United Nations Law Reports and co-editor of ISA Compendium on International Law (2010).

Stacey M. Mitchell is lecturer in the Dept. of International Relations at the University of Georgia, where she earned her PhD She is the author of many articles on international criminal justice, including “Ignorance and Miscalculation in American Foreign Policy towards Rwanda” and “The Role of Structure and Institutions in the Genocide of the Rwandan Tutsi and the Armenians of the Ottoman Empire.”

Table of Contents

Introduction
Part I: Thematic Studies
Chapter 1: Customary Law and the Ad Hoc International Criminal Courts
James Larry Taulbee
Chapter 2: The Joint Criminal Enterprise Debate and the Case of Charles Taylor: The Politics of International Criminal Tribunal Law
Kelly-Kate Pease
Chapter 3: Prosecuting Recruitment of Child Combatants by the Special Court for Sierra Leone: Precedents and Problems
Kimberly Lanegran
Chapter 4: Song as a Crime Against Humanity: The First International Prosecution of a Pop Star
Susan Benesch
Chapter 5: Seeking Justice and Accountability: The Dilemmas of Humanitarian Law and Human Rights NGOs
Mahmood Monshipouri
Chapter 6: Peace v. Justice: The Strategic use of International Criminal Tribunals
Candace H. Blake-Amarante
Chapter 7: Understanding the Alienated Constitutents of International Tribunals: Bridging the Gap
Adam M. Smith
Chapter 8: Justice, Peace, and Windmills: An Analysis of ‘Live Indictments’ by the International Criminal Court
Peter Stoett
Chapter 9: Should We Press the Victims? Uneven Support for International Criminal Tribunals
Michael D. Thurston
Chapter 10: The ICC and R2P: Problems of Individual Culpability and State Responsibility
Benjamin N. Schiff

Part II: Case Studies
Chapter 11: The Tokyo War Crimes Trial
YukiTakatori
Chapter 12: Arresting Charles Taylor
Beth Dougherty
Chapter 13: Hybrid Tribunals and the Rule of Law: War Crimes Chamber of the State Court of Bosnia and Herzegovina
Olga Martin-Ortega
Chapter 14: A Necessary Compromise or Compromised Justice? The Extraordinary Chambers in the Courts of Cambodia
Johanna Herman
Chapter 15: Special Tribunal for Lebanon
Kathleen Barrett
Chapter 16: Comparing Formal and Informal Mechanisms of Acknowledgement in Uganda
Joanna Quinn
Chapter 17: Restorative Justice, RPF Rule and the Success of Gacaca
Stacey M. Mitchell
Chapter 18: Gacaca and the Treatment of Sexual Offenses
Prisca Uwigabye
Chapter 19: Guilty as Charged: The Trial of Former President Alberto Fujimori for Human Rights Violations
Jo-Marie Burt
Chapter 20: Afterword
Henry F. Carey

Reviews

In Trials and Tribulations, Carey and Mitchell have assembled a compelling array of essays by distinguished scholars. Their volume’s well-crafted chapters explore the various factors affecting the outcomes of international humanitarian and criminal law prosecutions. In so doing, the collected works advance the laudable trend in recent international criminal justice scholarship toward assessing international tribunals’ efficacy. The contributors offer an appropriately pragmatic perspective on the limitations encountered by the 'international criminal justice model,' highlighting the range of impediments to international courts' achievements of their respective mandates. This comprehensive and lucid volume makes a valuable contribution to an evolving, critically important literature.

— Robert J. Beck, University of Wisconsin-Milwaukee

Trials and Tribulations of International Prosecution

Edited by Henry F. Carey and Stacey M. Mitchell

Trials and Tribulations of International Prosecution

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