Constructing an AtrocitiesRegime: The Politicsof War CrimesTribunals Christopher Rudolph Itis the bidding of mercy, if not of justice, that, except for reasons that are weightyand will affect the safety of many, no action should be attempted wherebyinnocent persons may be threatened with destruction. —HugoGrotius (1583– 1645) 1 Imagesof destruction are often incomprehensible. Describing the aftermath of ethnicviolence in Rwanda in the spring of 1994, one reporter wrote, Blood oweddown the aisles of churches where many sought refuge; ve priestsand twelve women hiding out in aJesuitcenter were slaughtered.A Red Crossambulance was stoppedat a check-point,the six wounded patients draggedout and bayoneted to death. Toddlers lay sliced in half, and mothers withbabies strapped to their backs sprawled dead on thestreets of Kigali.The ghtingwas handto hand, intimate and unspeakable, a kindof bloodlustthat leftthose who managed to escape it hollow-eyed and mute. 2 Unfortunately,Rwanda is but one of manycases where con ict has been marked byatrocities.The linkage between ethnic con ict and unspeakable brutality, as well astheir propensity to spreadacross borders, has caused some analysts to warn that “theever-increasing number of identity-based con icts suggests that we maybe facingan epidemic of potentiallycatastrophic proportions— anew world disorder.” 3 Surveyingthe evidence of Serbia’ s programof “ ethniccleansing” in Kosovo, UN war crimesprosecutor Louise Arbour remarked, “ thescale of the destruction is IthankArthur Stein; Kenneth Abbott; Gary JonathanBass; theeditors of IO,Peter Gourevitchand DavidLake; and two anonymous referees fortheir extremely helpfuland constructive comments. The generous nancialsupport of the Institute for the Study of World Politics, Washington, D.C., and the UCLA Graduate Divisionis gratefullyacknowledged. 1.Grotius [1925] 1962, 733– 34. 2. Time, 16May1994, 58. 3.Lake andRothchild 1998b, 339. InternationalOrganization 55,3, Summer 2001,pp. 655– 691 © 2001by TheIO Foundationand the Massachusetts Instituteof Technology 656 InternationalOrganization reallyvery overwhelming.” 4 From thenotorious “ killing elds”of Cambodia to recentevidence of brutality in Sierra Leone,the grizzly nature of ethnicand other identity-orientedcon ict incites horror, outrage, and a humandesire for justice. Inresponse to reports of atrocities in Bosnia, Kosovo, and Rwanda the interna- tionalcommunity established ad hoc international war crimestribunals to investi- gatecrimes and prosecute perpetrators. 5 Successiveefforts havebeen made to expandthe atrocities regime by forming a permanenttribunal, the International CriminalCourt (ICC), aprocessguided by the International Law Commission (ILC). Thisprocess culminated in the Rome Statute of the International Criminal Court(Rome Statute) created in Juneand July 1998. 6 Whenrati ed byatleastsixty nations,the statute will establish the ICC at The Hague. Proponents support internationaltribunals not only as a meansof holding perpetrators of atrocities accountablebut also as amechanismof peace by establishingjustice and promoting reconciliationin war-torn regions. Former U.S. Secretaryof State Madeline Al- brightproposed that, “ Inthe end, it isvery dif cult to havepeace and reconciliation withoutjustice.” 7 Thisanalysis has two primary purposes— the rst isconstitutive (regime as dependentvariable), the other is causal (regime as independent variable). 8 I seek to identifyand analyze the myriad political and procedural obstacles to establishingan effectiveatrocities regime by examininghumanitarian norms, the strategic interests ofpowerful states, and bureaucratic factors. I alsoseek to determine how the emergentregime may or may not be effective in achieving its primary goal (individualconvictions) as well as itssecondary and perhaps more salient goal: to manageviolent con ict and reduce the likelihood of future transgressions. I argue thatalthough liberal humanitarian ideas have created the demand for political action,the process of dealing with brutality in war hasbeen dominated by realpolitik —thatis, furthering the strategic interests of the most powerful states. However,by understandingthe political interests and procedural obstacles involved, theinternational community can make institutional adjustments in the design and implementationof an atrocities regime to bridge the gap between idealpolitik and realpolitik. Thisanalysis is a rst steptoward explaining both how a newinterna- tionallegal regime is constitutedand how it mayfunction in managing a formidable problemin world politics. Althoughevents in areas such as the Balkans, Rwanda, Sierra Leone,and Cambodia(among others) are trulyhorri c, they are notunique in the history of warfare; however,the current drive to establish humanitarian norms of con ict is novelin humanhistory. Historically, warfare hasbeen viewed as consistentwith the 4.Interview with Louise Arbour by FrancinePelletier, TheNational Magazine, CanadianBroadcast- ingCorporation, 29 July1999. 5.Another is beingestablished for Sierra Leonepursuant to S.C. Res. 1315,UN SCOR,UN Doc. S/RES/1315(2000). 6.Rome Statuteavailable at ^http://www.un.org/law/icc/statute/romefra.htm &. 7. LosAngeles Times, 19October 1999, A6. 8.On constitutive versus causal analyses,see Wendt1999. Constructingan Atrocities Regime 657 lawsof nature.Hugo Grotius, in his seminal work DeJureBelli ac PacisLibri Tres (TheLaw of War and Peace), providesvivid accounts of wartime brutality consistentwith norms of the time, citing Hellenic, Roman, and Biblical texts. Moreover,though Grotius includes some limitations on what was permissiblein war, theywould certainly be considered barbaric by modern liberal sensibilities. Thesenorms permitted, for example,the killing or injuringof all who were inthe territoryof the enemy, including women, children, captives, and those whose surrenderhad not been accepted. 9 Ratherthan focusing on the jusin bello, Grotius isin fact more concerned with notions of the jus ad bello.10 Inmatters involving acts of war andtreatment of a nation’s citizenry,the dominantnorm in the modern period is deference to national sovereignty. In fact, “priorto 1945,no principleof internationallaw was morewidely revered in practice thanthe idea of ‘domesticjurisdiction’ on matters relating to humanrights.” 11 Since theHolocaust, however, there has been tremendous interest in promoting human rightsand creating more stringent standards of international conduct, including duringarmed con icts, that is consistentwith these evolving ideas. 12 Thisnormative andinstitutional development prompts several related questions: What explains the dramaticturn in the 1990s toward legalization? What drives the process of forming andapplying the regime in given cases? Once established, what makes tribunals moreor less effective? How usefulis legalizationin curbing abhorrent behavior and promotingnational reconciliation? Ideas, Interests, andInstitutions Scholarsof international law (IL) focusessentially on precedent and procedure, whereasscholars of international relations (IR) focuson explicating the political dynamicsthat shape outcomes, the approach used here. By introducing an IR perspectiveto the process of legalization,Kenneth Abbott suggests that, “ IRhelps usdescribelegal institutions richly, incorporating the political factors that shape the law;the interests, power, and governance structures of states and other actors; the information,ideas, and understandings on whichthey operate; [and] the institutions withinwhich they interact.” 13 Althoughthe movement to establish a universal atrocitiesregime (through an international criminal court) is predicated on the internationalcommunity’ s desireto strengthen norms of human rights and justice, itis fraught with political obstacles and differing views on how to negotiate this complicatednormative and strategic terrain. In this analysis I synthesizeapproaches 9.Grotius [1925] 1962, 641– 62. 10. Jus in bello focuses onconduct in war andthe protection of civilians during armed conict (crimes ofwar), whereas jus ad bello refers toacceptable justications for the resort to armed force (thejust war). See Christopher1994. 11.Beres 1988,124. 12.See Sikkink1993 and 1998; and Finnemore 1996. 13.Abbott 1999, 362. 658 InternationalOrganization inIL andIR toexplain the linkages between law and politics in the international arena. Withinthe domain of IR theory,realists have traditionally said little about issues inworld politics that do not involve questions of relative power and material interest.Realists generally argue that in aworldof asymmetricalpower distribution withno international body to exert pressure, “ logicsof consequences dominate logicsof appropriateness.”14 However,although power and material interests do not explainthe establishment of a humanitarian-basedregime, they do explain state responsesto domestic pressures for regimeformation. 15 Realistspredict that powerfulstates will not accept a regimethat signi cantly undermines its ability to respondto perceived security threats. Moreover, they would predict that both the forms suchinstitutions take and the application of their jurisdictions in particular caseswill thus re ect the interests and relative power of thestates involved. Thus, “humanitarian”policies may in fact be manifestations of what Stephen Krasner refers toas “ organizedhypocrisy.” 16 Incontrast to realists, constructivists reject this notionthat state interests are static and centered only on material factors; they suggestthat such