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Human Rights and Penal Policy

Summary and Keywords

Structural and cultural changes in the modernization process, combined with contingent historical events, gave rise to a human rights regime. It is codified in the Universal Declaration of Human Rights, promulgated after World War II and the Holocaust. Yet, only the gravest of human rights violations have been criminalized. First steps were taken beginning in the 19th century with The Hague and Geneva Conventions, constituting the Laws of Armed Conflict. They were followed by the Convention for the Prevention and Punishment of the Crime of Genocide (1948), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and eventually the Rome Statute (1998) on which the first permanent International Criminal Court is based. Some scholars even observe a justice cascade. Enforcement of the norms entailed in the above legal documents benefits from opportunities such as increases in international interdependencies, the buildup of international organizations, and the proliferation of nongovernmental organizations in the human rights realm. Challenges arise from partially competing principles such as conflict settlement and survival of suffering populations as cultivated by social fields such as humanitarianism and diplomacy and from a lack of law enforcement. While international institutions play a crucial role, much international law is implemented through domestic courts. International penal law pertaining to human rights has affected domestic policymaking in the human rights realm but also nation-level policies pertaining to the punishment of common crimes. Finally, debates continue to rage regarding the effects of the criminalization of grave human rights violations. Proponents have thus far focused on potential deterrent effects, but a new line of thought has begun to take cultural effects seriously. Its representatives identify a redefinition of those responsible for mass violence as criminal perpetrators and substantial representational power of international criminal law against those who bear responsibility for the gravest of human rights violations.

Keywords: human rights, genocide, crimes against humanity, war crimes, atrocity crimes, international law, International Criminal Court, Darfur, Convention for the Prevention and Punishment of the Crime of Genocide, domestic genocide law

Themes and Roadmap

The Universal Declaration of Human Rights (UDHR) formally established human rights. It was adopted by the United Nations General Assembly on December 10, 1948. Motivated by the experience of two world wars that shook the world in the first half of the 20th century, the declaration establishes those rights for all human beings that most democracies grant to their citizens as such. While offenses against human rights do not typically constitute criminal offenses, they do so in cases of genocide, crimes against humanity, and war crimes, crimes for which Scheffer (2006) coined the generic term “atrocity crimes.” These phenomena are not new. Martha Minow (1998) correctly stressed that many centuries can compete with the 20th century in terms of the degree of atrocities, but only in the 20th century did humankind systematically attempt to establish institutions to prevent and punish such acts. The growth of such efforts during the late 20th and early 21st centuries arguably constitutes a “justice cascade” (Lutz & Sikkink, 2000; Sikkink, 2011), though scholarship has only begun to evaluate the impact of these institutions. Such efforts are warranted; scholars estimate the number of human lives extinguished through mass atrocity crimes in the 20th century alone at close to 200 million (Rummel, 1994), about 10 times the death toll of killings in civil society (Savelsberg, 2010).

In addition, the global human rights regime has been instrumental in recent reforms to existing laws for common crimes. Frank et al. (2009, 2010) found, for example, laws regulating sexual activity increasingly aimed at the protection of individuals rather than collectivities over the past half century, a tendency in line with the acceptance of a human rights framework. The global human rights regime has also affected punitiveness for common crimes at the domestic level, especially by advancing the abolition of the death penalty (Mathias, 2013).

This entry consists of three major sections. We first review scholarship that speaks to the criminalization of human rights violations in the international realm. An excursus into the case of mass violence in Darfur illustrates in detail the mechanisms at work. We then speak to ways in which global human rights regimes affect domestic penal policy. We finally address effects of criminal accountability measures.

Criminalizing Human Rights Violations

The post–World War II era has witnessed an intensified development of international criminal legal institutions in response to grave violations of human rights norms (Hagan, 2003; Meron, 1998; Morton & Singh, 2003). Where the prosecution of atrocity crimes by state leaders was once “unthinkable,” impunity for human rights violations is now frequently, directly, and vociferously challenged (Sikkink, 2011). Calls for individual criminal accountability (Akhavan, 1996; Bassiouni, 1997) intensified, and Kathryn Sikkink (2011) and others (e.g., Olsen, Reiter, & Payne, 2010) have documented an increase in prosecutions that Lutz and Sikkink (2000) described as a “justice cascade.”

Historically, perpetrators of mass atrocities did not face punishment. In fact, military and civilian leaders, under whose command atrocities were committed, were often celebrated as heroes and great state builders (Giesen, 2004). In modern history, impunity partially resulted from the principle of national sovereignty, established by the 1648 peace treaty of Westphalia that ended the Thirty Years’ War. Intended to prevent future wars, the treaty cemented the contemporary nation-state model of political organization that endows sovereigns with the ability to govern the internal affairs of their territory without threat of foreign intervention (Gross, 1948).

Change began in the early 19th century with the anti–slave trade movement (Martinez, 2011). In 1815, the Vienna Congress issued a “declaration” against slave trade, followed by treaties to ban such trade that Britain entered with Spain, Portugal, and the Netherlands. These treaties resulted, after 1817, in the creation of international tribunals, so-called mixed commissions, composed of judges from the participating countries. These courts considered slave trade activities as crimes against humanity long before the term was used in Nuremberg more than a century later. Enforcement mechanisms were robust, as the participating countries granted each other the right to search and seizure. By the early 1840s, more than 20 nations had signed anti–slave trade treaties. Eventually, in 1862, after initial resistance the United States also signed a treaty under President Lincoln. Anglo-U.S. mixed courts made it unsafe for slave ships to sail under an American flag as prosecution loomed. In addition, U.S. domestic courts played an increasingly important role in the pursuit of slave traders. Courts began to apply to slave traders the notion of hostis humani generis (enemy of mankind), previously reserved for pirates.

On another front, humanitarian activists successfully persuaded state leaders to establish a common code of conduct for international warfare. Drafted during multinational conferences in the cities they are named after, the Geneva and Hague conventions are referred to collectively as “humanitarian law” or the “Laws of War” or “Laws of Armed Conflict,” and violation of these laws constitutes a war crime. These conventions concern the treatment of wounded soldiers in international warfare on land (1864) and shipwrecked at sea (1907); they set rules for international warfare generally (1899 and 1907), regulate the treatment of prisoners of war (1929), and—eventually, after World War II—also the protection of civilians in time of war by establishing rules against the deportation of individuals or groups, the taking of hostages, torture, collective punishment, “outrages upon personal dignity,” the imposition of judicial sentences without due process, and discriminatory treatment (1949).1

These conventions enjoy broad support among the world’s nations, as indicated by the commitment of 180 ratifications (more than 90% of countries worldwide). While the Laws of War set binding international standards for situations of international conflict, they basically continue to respect national sovereignty. As a result, they do not provide mechanisms for intervention in the internal affairs of a country in times of peace, no matter the gravity of humanitarian abuses in a country.

Yet, two subsequent protocols, both from 1977, marked a weakening of sovereignty. Protocol I extended the protections of the Hague/Geneva Conventions to persons involved in wars of “self-determination,” typically in liberation wars former colonies fought against colonial powers. Violations of humanitarian principles could thus no longer be considered internal affairs of colonizers. Going one step further, Protocol II extended humanitarian rights protections to persons involved in severe civil conflicts, prohibiting collective punishment, torture, hostage taking, acts of terrorism, slavery, humiliating and degrading treatment, rape, and enforced prostitution. These protocols have also found broad support, albeit weaker due to their more interventionist nature, with 150 and 145 ratifications respectively.

Following World War I, the Laws of War provided the legal foundation for efforts to prosecute German and Turkish leaders and rank-and-file soldiers (Akçam, 2006; Bass, 2000; Crowe, 2014). Yet, while the 1920 Treaty of Sèvres promised prosecutions, especially against perpetrators of the Armenian genocide (even if the term had not been created yet), the subsequent Lausanne Treaty (1923) annulled Allied commitments. Continued efforts by the British government to bring rank-and-file Turkish soldiers to account for atrocities committed against British military were not sustained by their Allied partners, and they ultimately stalled. Nevertheless, the British response set a precedent for discussing misconduct during and prior to war, even when committed by a sovereign nation against its own citizens.

Sociological accounts point to several factors that contributed to the reframing of once-accepted acts as immoral and the translation of moral outrage into institutional action. Cultural forces were crucial, a shift in perceptions of the value of human life and the dignity—and, in fact, sacredness—of individual humans, powerfully articulated in 1898 by sociologist Émile Durkheim in his response to the Dreyfus Affair of his native France. Accordingly, Levy and Sznaider (2004, pp. 146–147) observed that in the valuation of human life, the

duty to prevent suffering wherever it occurs, to not stand by and allow innocent people to be slaughtered . . . did not originate in the wake of the Holocaust, but in the experience of the destructive potential of modern warfare and the attempts of numerous organizations like the International Committee of the Red Cross to make war more ‘humane.’

Indeed, the idea of protecting groups from annihilation resonated in popular sentiments thanks to long-term shifts in sensitivity to violence (Elias, 1978). Such shifts had institutional and structural foundations: the centralization of state power and associated pacification of civil society and processes of functional differentiation and associated individualization. A second major force was structural shifting, especially the intensification of international trade, travel, and communication that promoted interdependencies among nation-states and resulted in an exponential expansion of international law (Dezalay & Garth, 2002; Slaughter, 2004). This expansion both normalized international regulations generally and resulted in limits to acceptable wartime conduct specifically.

Against such cultural and structural transformations, individual historical events—specifically World War II and the accompanying atrocities—propelled the development of international law, including penal law. The war and the Holocaust delivered a “shock to the collective conscience of the world’s community” (Morton & Singh, 2003, p. 47). This shock finally ruptured the perceived legitimacy of mass violence and ushered in an era of human rights, even if some scholars argue that decisions by Allies to indict Nazi leaders for war crimes likely were an expression more of symbolic politics than moral outrage (Bass, 2000; Fein, 1979, 1993). In fact, sociologist Helen Fein (1993, p. 3) insisted that the promise of retribution through the International Military Tribunal at Nuremberg “obscured the gap between their condemnation and the Allies’ prewar and wartime behavior.” Moreover, pursuing legal proceedings with the assurance of due process rights only occurred after all members of the Allied forces were dissuaded from alternative options, such as show trials and mass executions (Bass, 2000). High officials of Nazi Germany were charged with crimes against humanity and tried at the International Military Tribunal at Nuremberg in 1946 and at the so-called subsequent Nuremberg trials, conducted under U.S. authority. Nazi officers were also charged at further trials conducted by other victorious powers, especially the Soviet Union, in other occupation zones. The post–World War II tribunals held at Nuremberg, and the related Tokyo trial against leaders of wartime Japan, are widely regarded as “watershed” moments for international criminal accountability (Bass, 2000). The experience of World War II and the Shoah also generated favorable political conditions for the development of international criminal law. Central among the latter was the Convention for the Prevention and Prosecution of the Crime of Genocide of 1948.2

The creation of genocide law illustrates the potential of individual agency in legal development as it owes much to Raphael Lemkin, a Polish lawyer who himself fled from Europe to the United States during World War II. Prior to coining the term “genocide,” Lemkin (1944) had long advocated for criminalizing the intentional mass killing of a group. His conception grew out of massive research he had conducted on prior cases, particularly the mass killing of Armenians by the Ottoman Empire in the years 1915 to 1917 in the context of World War I (Fein, 1993; Power, 2013). Yet, the definition of genocide adopted in the UNGC is considerably narrower than Lemkin’s (1944) original suggestion and the initial conception of its drafters (Kuper, 1981; Morton & Singh, 2003). Despite the criticisms of scholars and activists, the statutory definition of genocide has remained unchanged since 1948 (Kuper, 1981; Schabas, 2000).3 And despite the historic moment in which it was created, only some countries ratified the convention within a few years; others (such as the United States and Switzerland) did so only decades later (1988 and 2000, respectively). Empirical studies of state ratifications of the Genocide Convention (Greenhill & Strausz, 2014; Smith, 2010)—and, later, of the Rome Statute of 1998 and the foundation of the International Criminal Court (Simmons & Danner, 2010)— suggest a variety of factors that affect state commitment to international criminal justice laws, prominently among them the form of a country’s political and legal system.

The International Criminal Court was established more than five decades after it was initially proposed in drafts of the Genocide Convention (Schabas, 2000). Following the ratification of the convention, the United Nations supported the development of an international criminal court until 1954, when a stalemate led to the suspension of the project, and automatic jurisdiction over violations of the Genocide Convention was granted to the already-existing International Court of Justice (ICJ) (Schabas, 2000). This decision held significant consequences for criminal accountability. Since the ICJ only adjudicates legal disputes between countries, individuals could not be held criminally accountable for violations of the Genocide Convention. Additionally, many states declared reservations to prevent the ICJ from exercising automatic jurisdiction over their country. This provision, included in Article IX of the UNGC, has generated more reservations than any other (Alter, 2011).

After slow progress toward individual criminal accountability in the early decades following the post–World War II efforts, initiatives accelerated again in the late 20th century. Most international human rights conventions, such as those for the protection of women (1979), children (1990), and indigenous peoples (1991), are not backed by the tools of criminal law.4 However, the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (1987) does apply standards of criminal liability, such as the Genocide Convention and the Laws of War before it and a few years later, the Rome Statute.

Thus, it was not until the 1990s that a new model of criminal liability began to firmly supplement domestic accountability. Again, historical contingencies help explain this turning point in the history of international criminal law. They include the atrocities committed in the course of the wars in the former Yugoslavia and the Rwandan genocide, as well as the shift in the international balance of power after the breakup of the Soviet Union and the end of Communism in Eastern Europe (Hagan & Levi, 2005; Meron, 1998). Initial steps were ad hoc tribunals such as the International Tribunal for the former Yugoslavia (ICTY) in The Hague and the International Criminal Tribunal for Rwanda (ICTR).5 They were followed by the 1998 Rome Statute, which established the International Criminal Court (ICC). The ICC is designed as “an independent, permanent court that tries persons accused of the most serious crimes of international concern” (Rome Statute, 1998). The ICC treaty entered into force on July 1, 2002, by which date enough countries had ratified the statute. The ICC has jurisdiction over war crimes, crimes against humanity, genocide, and the crime of aggression.

The creation of new legal institutions corresponds with an increase in trial activity—at the domestic and international levels—from about 70 human rights trial years (1979–1984) to some 300 such trial years (2000–2004), which are the most recent years of a systematic count (Sikkink, 2011). More than one third of trials were held in Latin America, and most trials were domestic trials, conducted for local human rights abuses (N=250). Examples include the Argentinean trials against members of the military junta and Iraqi trials against Saddam Hussein and members of his regime. Comparatively few trials are foreign trials, held in one country for offenses committed in another country (N=25) or international trials conducted under the auspices of an international court, typically acting on behalf of the UN (N=20), such as cases before the ICTY and the ICTR. Finally, hybrid models, involving domestic and international features, are exemplified by trials in Cambodia, Sierra Leone, and the former East Timor. The predominance of national courts does not mean, however, that the international realm is unimportant in the realization of human rights law. First, domestic courts apply not only domestic but also international law. Second, international courts serve as crucial backup institutions without which much domestic enforcement would not occur (Roht-Arriaza, 2005; Sikkink, 2011).

In short, the principle of state sovereignty, established by the 1648 Peace Treaty of Westphalia, began to weaken with the development of human rights and humanitarian law, initially in the late 19th century and more decisively in the post–World War II era. Specifically, the growing—albeit cautious—openness toward international intervention into domestic affairs comprises three processes: (1) a universalization or globalization of human rights law, its institutionalization in international doctrines and organizations, including courts of law, and its application by many nations in domestic courts; (2) an individualization of human rights law, allowing for grievances to be directed not just against governments or entire countries but also against individuals acting on behalf of these countries (and filed by individuals); and (3) a partial criminalization of human rights law, supplementing compensatory mechanisms with penal responses. Yet, international administrative and criminal tribunals alike have historically held little to no enforcement power (Alter, 2011; Giorgetti, 2012).

Opportunities and Challenges of Human Rights Law in Action

The normative shift from impunity to criminal accountability for state-sponsored abuses represents one of the most significant changes to the norms of global politics since World War II (Savelsberg, 2010; Sikkink, 2011). Yet, institutionalized responses to violence are subject to an array of social forces. Despite the development of international atrocity law and institutions dedicated to its implementation, the shift toward “liberal justice” (Bass, 2000; Hagan, 2003) has neither been seamless nor complete. Impunity, official policies facilitating institutionalized forgetting, “show trials,” and extrajudicial punishment have all continued (Bassiouni & Hanna, 2006; Teitel, 2003). The incomplete transition is often obscured in narratives of progress and even “cascades.” While terms such as “tipping points” and “cascades” may suggest inevitability, criminal accountability for genocidal acts continues to be a contested, political process.

For example, those tasked with enforcement continue to confront resistance on political and institutional fronts. John Hagan’s (2003) ethnography of the International Criminal Tribunal for the Former Yugoslavia (ICTY) opened the “black box” into the innerworkings of an inchoate institution. Hagan points to the necessity of norm entrepreneurs to secure enforcement mechanisms for the tribunal. For example, Chief Prosecutor Louise Arbour took crucial and innovative steps to establish the right and capabilities of the court to arrest persons wanted for prosecution.

Generally, the functioning of the ad hoc tribunals is largely dependent on state actors. In addition to funding streams, international courts rely on states’ cooperation in order to conduct investigations and to secure access to defendants and witnesses (Akhavan, 1996; Bass, 2000; Hagan, 2003). In some cases, third parties have contributed to compliance through economic or political inducements. For instance, the United States and the World Bank conditioned economic aid to Serbia and Croatia on cooperation with the International Criminal Tribunal for Yugoslavia. Bribes authorized by U.S. Secretary of State Colin Powell were seen as a necessary step to achieve the prosecution of Slobodan Milosevic for crimes committed (Hagan, 2003; Hagan & Levi, 2005). Additionally, scholars have pointed to the role of prosecutorial discretion in shaping the types of acts and the nationality of defendants charged (Bass, 2000; Hagan, 2003). The nationality and gender of judges further affect judicial outcomes (Meernik, 2003). Opportunities and challenges become visible in case studies, and the following excursus on Darfur may serve as an illustration.

Excursus 1: International Interventions—A Case Study on Darfur

The case of UN and ICC responses to the mass violence in the Darfur region of Sudan allows for an illustration of the forces that promote criminal prosecution. Plagued by episodes of violence for decades, the situation in Darfur escalated in 2003. Center-periphery conflicts had given rise to intensifying rebel activity against the marginalization of sedentary agriculturalists, defined as black Africans. Prompted by sensational rebel attacks in 2003, Sudanese military and affiliated militia groups, so called Janjawid, responded with massive force not just against rebels but also against the civilian population (Hagan & Rymond-Richmond, 2009). While precise numbers are debated, tens to hundreds of thousands have lost their lives, and thousands have been raped and tortured. Millions have been displaced.

The international community responded with a series of interventions. On September 18, 2004, UN Resolution 1564 established an International Commission of Inquiry on Darfur. And on January 25, 2005, this commission delivered its report to Secretary General Kofi Annan, concluding that the Sudanese government had committed serious offenses against human rights and humanitarian law but not genocide (International Commission of Inquiry, 2005). On March 31, 2005, the UNSC referred the situation in Sudan to the ICC. After investigation, the ICC prosecutor applied for an arrest warrant for Sudanese Deputy Minister Ahmad Harun and Janjawid militia leader Ali Kushayb for war crimes and crimes against humanity on February 27, 2007. And the ICC issued a warrant of arrest for both actors for war crimes and crimes against humanity on May 2, 2007. On July 14, 2008, the prosecutor then applied for an arrest warrant for Sudanese President Omar al-Bashir for crimes against humanity, war crimes, and genocide. Initially, on March 4, 2009, the court issued an arrest warrant only for crimes against humanity and war crimes, but later, in July 2010, genocide charges were included.

Opportunities

Responses to the mass violence in Darfur show that reactions by the international community were part of the justice cascade, the replacement of impunity by the pursuit of individual criminal accountability against perpetrators of grave human rights violations. In addition, they were advanced by the same forces that fueled the justice cascade.

A crucial condition of the justice cascade is the mobilization of human rights NGOs and Transnational Activist Networks (TANs) in which they are embedded (Keck & Sikkink, 1998), and that mobilization unfolded in the context of Darfur with great determination. Amnesty International and its fight to end impunity provides an excellent example, as illustrated by a recent interview-based study (Savelsberg, 2015). Interviews show how Amnesty decisively supported ICC intervention and how its own narrative on Darfur resembles and reinforces that of the judicial field (on the judicial field, see Bourdieu, 1987; see also Hagan & Levi, 2007). Here, too, the focus is on the goal of justice and on individual perpetrators. Respondents insist that justice, once achieved, will help reach other goals such as peace.

Amnesty respondents’ relative unanimity in representing the violence as crime supports the strength of globalizing forces highlighted by the world polity school (Boyle & Meyer, 1998; Meyer et al., 1992). This is expected for an international NGO that closely coordinates actions with other human rights INGOs, especially for Amnesty with its strong International Secretariat in London and its relatively hierarchical organizational structure.

In addition to INGOs and TANs, national governments were crucial actors, albeit to different degrees. The United States, its civil society and government, stood out in international comparison. It sought, more strongly than other members of the international community, to advance a criminalizing frame for Darfur and a definition of the violence as genocide. Essential contributors were civil society groups as carriers of collective memory, especially evangelical Christians (mindful of the persecution of Christians in South Sudan), African Americans (as the victims were identified as black Africans), and Jewish organizations (after the U.S. Holocaust Memorial Museum had issued a “genocide alert”), organized under the umbrella of the “Save Darfur” campaign. The George W. Bush administration followed suit, despite its general opposition to the ICC but under the pressure of civil society. Conditions for this transmission from civil society to the federal government include the porousness of boundaries between civil society and the state, which is a particularity of the United States (Bendix, 1949 [1974]; Roth, 1987; Savelsberg, 1994). Articles in the New York Times and the Wall Street Journal (especially opinion pieces) further reflected and reinforced the consensus between civil society and the state (Savelsberg, 2015, chapter 3, Savelsberg & Nyseth Brehm, 2015). They highlighted the crime frame, labeled the violence a genocide, and used dramatic bridging metaphors to shed light on the violence of Darfur by referencing past genocides, including the Holocaust.

Obstacles

The pursuit of criminalizing responses to the mass violence of Darfur also faced challenges. As permanent members of the UN Security Council, China and Russia had allowed the situation of Darfur to be referred to the ICC. Yet they did not further support the process, partly due to geostrategic and economic interests. In addition, the human rights field faced competitors that generated substantial skepticism toward criminal prosecution and narratives of Darfur that differed profoundly from the criminalizing narrative.

One potential competitor of the judicial field and its supporters is the humanitarian aid field as an in-depth examination of the work of one NGO, Doctors without Borders (MSF), showed (Savelsberg, 2015, chapter 4). Narratives arising from the humanitarian field highlight those aspects of suffering that can best be addressed by aid programs. Displacements and the conditions of those who populate the internally displaced persons and refugee camps are privileged over the fate of others who lose their lives during massacres, rape campaigns, and on death marches into the camps. Humanitarian narratives treat the government of Sudan cautiously. Long-term conditions such as the desertification of the Sahel zone or long-standing center-periphery conflicts are highlighted over government actions that directly prompted violent intervention. The humanitarian catastrophe frame is privileged over the crime frame, and actors shy away from the genocide label. A major causal factor here is the powerful position of the government of Sudan vis-à-vis humanitarian actors (de Waal, 1997; Hagan et al., 2006). Humanitarian NGOs depend on the government in Khartoum for travel permits and cooperation to maintain their operations. Similarly, countries with foreign policies that are distinctly oriented toward humanitarian aid constitute challenges to criminal justice interventions (on the example of Ireland see Savelsberg, 2015, chapter 5). The humanitarian field thus emerges as the producer of a competing truth regime.

The field of diplomacy may also become a source of resistance to criminal prosecution and provide a yet distinct truth regime. Narratives of the mass violence in Darfur generated in the diplomatic field differed sharply from judicial and human rights representations. Interviews in foreign ministries reveal a diplomatic master narrative or ideal type of diplomatic representation of mass violence (Savelsberg, 2015, chapters 6 and 7). Even more so than the humanitarian aid field, diplomacy focuses on long-term and structural causes of conflicts. It tends to avoid naming criminally responsible actors. It refrains from using the crime frame and from applying the genocide label. Again, the role of the Sudanese state is decisive. Diplomatic actors depend on active participation by high-ranking politicians of the country in which mass violence unfolds, and this dependency was especially intense around 2010 when the implementation of the Comprehensive Peace Agreement was at stake. It was an agreement that would end decades of murderous war between the north and south of Sudan.

In addition, and different from judicial actors and their allies, diplomats are less oriented toward procedure than toward substantive outcomes. They seek to advance their respective countries’ material and ideal interests, which are tied—in the Darfur case—to the pursuit of peace and political stability in the region. Diplomats have internalized their field’s institutional logic and its doxa—that is, its matter-of-course assumptions about the world. These observations relativize arguments by Samantha Power (2003) for the United States and Karen Smith (2010) for Europe, according to which cautious language in the foreign policy field, even in the face of genocide, indicates the reluctance of rational actors against intervention, at potentially high political cost. Data for the case of Darfur suggests that such hesitation must be attributed instead to the habitus of diplomats and its rootedness in the structural conditions of their field.

A final impediment of international criminal justice is a lack of enforcement power. In the case of Darfur, as of early 2018 not one leading actor in the Darfur conflict who was charged by the ICC has been arrested. Consequently, in December of 2014, Fatou Bensouda, chief prosecutor of the ICC, announced to the United Nations that she had decided to “hibernate” the prosecution of those charged with crimes in Darfur:

Given this [UN Security] Council’s lack of foresight on what should happen in Darfur, I am left with no choice but to hibernate investigative activities in Darfur as I shift resources to other urgent cases, especially those in which trial is approaching. It should thus be clear to this Council that unless there is a change of attitude and approach to Darfur in the near future, there shall continue to be little or nothing to report to you for the foreseeable future.6

Ms. Bensouda cited considerable frustration over the court’s inability and the world powers’ unwillingness to bring those charged before the court. Accordingly, in a February 12, 2015 New York Times article, journalist and UN correspondent Somini Sengupta writes about a growing number of cases, defiant government authorities, and a Security Council that has called for investigations but has done little to advance them. Her article is entitled “Is the War Crimes Court Still Relevant?” And indeed, the Darfur case is not the only one where the court’s lack of direct access to an enforcement staff is on full display, which is especially painful for those in pursuit of criminal justice.7

The weakness of the court is often attributed to hostility from the world’s superpowers, their defensiveness against incursions into their sovereignty, and their geopolitical and economic interests across the globe. And indeed, the court faces stiff resistance wherever it considers addressing situations in which the Great Powers have vested interests. Examples include current considerations to investigate U.S. military personnel for engaging in torture in Afghanistan or to take on the situation of grave human rights violations in North Korea, China’s ally. In addition, as illustrated above, criminal justice and the ICC appear to be challenged by the competition the legal field experiences from others, including the humanitarian and the diplomatic fields. This competition is associated with considerable—at times cautiously worded, at other times aggressively presented—ambivalences toward the court and its rationales. The Darfur case illustrated how a social field’s definition of the situation varies with its strategic interests and the web of power relations it is embedded in. Here the court faces a resistance that is not limited to the obvious interests of major powers but that pervades the international community and seeps into the very mindsets of a multitude of actors outside the justice system involved in situations such as Darfur.

Opportunities and Challenges Continued: Domestic Courts

Despite origins in international law, domestic legal arenas have become the primary playing field for the criminalization of human rights offenses. Domestic prosecutions, whether through foreign or territorial jurisdiction, exceed prosecutions under international jurisdiction (Sikkink & Kim, 2013), aided by the adoption of domestic laws criminalizing human rights abuses. Systematic research on domestic efforts, however, are lacking (Quigley, 2013). Several issues have only been partially addressed.

First, for countries that have ratified the Genocide Convention, legislation is frequently required to align the treaty with domestic criminal codes and procedures so that the Genocide Convention can be enforced under domestic criminal justice systems (Schabas, 2000). While classical international treaties are typically “self-enforcing,” treaties affecting domestic actions, especially regarding criminal codes, have typically necessitated additional legislation. At the domestic level, 149 countries had ratified the international treaty to prevent and punish genocide by the year 2018, and more than 120 countries have further criminalized genocide through domestic statutory law (Berlin, 2015; McElrath, 2019). The additional government action serves as a buffer between international and domestic legal orders but also seeks to ensure that states reconcile any domestic obstacles to enforcement and specify punitive sanctions (Mitchell, 2008).

Gaps between ratification and implementation may reflect both the degree of change required and the ease with which states can implement such changes. Both of these factors vary widely by political and legal structures. For instance, the same factor that delayed ratification in Ireland and the United Kingdom also contributed to a 15-year delay in implementation in Italy (Smith, 2010, 2013). Specifically, Smith notes that the Genocide Convention’s extradition requirements conflicted with domestic extradition laws, which exclude extradition for political crimes (labeled as genocide). Ultimately, implementation legislation passed only after the Constitution had been amended to exclude crimes of genocide from constitutional provisions. A study of state adoptions of domestic genocide laws finds that political and legal institutions, ties to the international community, and civil-society support for genocide laws increase the odds of implementation (Berlin, 2015).

Second, continued debate as to whether the prosecution and punishment of genocide is a universal legal mandate opens the legal basis for challenges to prosecution. Although the original intent of the Genocide Convention was to ensure “global justice for a global crime,” provisions for universal jurisdiction were removed from the final draft of the UNGC (Schabas, 2000). Typically, treaty obligations, such as those contained in the UNGC, extend only to signatories. However, treaties designated as an international principle, customary law, or jus cogens norms apply universally (Bassiouni, 1996; Mendlovitz & Fousek, 1996; Schabas, 2000).

Various legal interpretations have rendered it unclear whether the prohibition of genocide constitutes customary law and whether implementation legislation is necessary to enforce customary international law via domestic courts (Mitchell, 2008; Schabas, 2000). Notably, the International Court of Justice has twice indicated that the UNGC holds customary status (in 1951 and 1970) (Schabas, 2000). Universal jurisdiction has been asserted in other key war crimes prosecutions as well. In particular, the 1964 Israeli trial of Adolf Eichmann, a German citizen kidnapped in Argentina for crimes committed by Nazi Germany during the Holocaust (Arendt, 1963), and the 1998 Spanish indictment of Augusto Pinochet for crimes committed against his own citizens in Chile (Sikkink, 2011), have garnered attention as potential “turning points” (Schabas, 2000). Nevertheless, the application of universal jurisdiction remains subject to legal interpretation (Saul, 2000; Schabas, 2000). Domestic courts have dismissed charges of genocide on the premise that the domestic legal code did not include implementation legislation (Prevent Genocide International, 2003). Due at least in part to the establishment of the permanent International Criminal Court, tides may be changing. In the United States, for instance, the Genocide Convention Implementation Act (the Proxmire Act) did not initially authorize universal jurisdiction of federal courts to prosecute genocide. Subsequently, however, Congress enacted the Genocide Accountability Act of 2007, which explicitly authorizes the exercise of universal jurisdiction by federal courts for the prosecution of acts of genocide.

In the absence of universal jurisdiction for crimes against genocide law, domestic judicial systems are by and large bound by the legal principle stipulating no crime or punishment without prior law. Because genocide law was not in place prior to Nazi actions, prosecutions were restricted to charges of murder and accessory to murder (Pendas, 2006). According to Pendas, this gap in the formal laws on the books resulted in the omission of achieving accountability for and establishing a record of the structural and systematic nature of the genocidal violence. More broadly, the content of laws on the books shapes judicial proceedings and the representations of violence they construct (Jardim, 2011; Marrus, 2008; Osiel, 1997; Pendas, 2006) and may thereby affect societal collective memories of atrocity (Savelsberg & King, 2011).

While law on the books thus constitutes an opportunity and a constraint in the domestic enforcement of genocide law, social forces affect the likelihood that states choose to prosecute (Garland, 1990; Savelsberg, 2018). Empirical studies of human rights prosecutions in Latin America, for example, suggest that enforcement actions may serve to communicate to domestic and international audiences. Domestic pressure that “boomerangs” from civil society via international organizations back to the country in question is likely to influence state actors (Keck & Sikkink, 1998; Sikkink, 2011). As human rights prosecutions have become more normative, domestic and foreign prosecutions serve as a signal to international audiences of the state’s commitment to human rights and the world community more broadly. Relatedly, states may seek to at least appear to be enforcing anti-impunity norms to avoid eliciting condemnation from international actors (Akhavan, 2001; Sikkink, 2011). As Akhavan (2001, p. 27) suggests, the perceived need for international legitimacy may explain why states would assert universal jurisdiction to prosecute non-citizens of acts committed on foreign soil.

Criminal accountability for human rights violations may further depend on political structures and processes, such as type of regime change and specifically on the balance of power between old and new elites in the immediate aftermath of transition. Kim’s (2012) analysis of human rights prosecutions in countries “transitioning” from authoritarian to democratic political institutions between 1980 and 2006 found that juridical responses to atrocities were more likely to proceed when governing regimes were “replaced” wholesale; this is compared to regimes that included elites from former regimes (“transformed”) or those constructed through negotiation between old and new elites (“transplaced”). Yet, even countries where atrocities were followed by relative regime continuity appear to be more likely to pursue criminal accountability over time (Savelsberg & King, 2011). This latter finding likely reflects historical “period effects,” as criminal accountability for atrocity crimes has become increasingly normative, especially since the 1970s (Sikkink, 2011). However, the nature of regime change appears to affect how prosecutions are conducted (Savelsberg & King, 2011). When countries where regime continuity followed atrocities do seek criminal accountability, they are more likely to have limited prosecutions that focus on low-level offenders, whereas replacement regimes are more likely to target high-level offenders such as former political and military leaders.

In addition to the nature of political transition and resulting power balances, a variety of institutional factors may impact decisions to adopt genocide prosecutions. Previous studies point to legal institutions, such as judicial independence from political control (on Chile, see Huneeus, 2010) and provisions for access to the courts (on Latin America generally, see Sikkink & Walling, 2007) as salient for human rights prosecutions. Additionally, institutional opportunity structures appear to affect the timing of implementation, as most countries adopted statutes in the context of substantial criminal code revisions (Berlin, 2015).

Enforcement decisions may also reflect material and human capital. For instance, “policy trade-offs” may result from institutional competition among social fields (and actors within those fields) for symbolic and material resources (Sutton, 2000). Sociologists have linked punitive policy decisions to trade-offs between prison and social welfare (Garland, 1985; Sutton, 2000) and economic rather than “law and order” reform (Farrell & Hay, 2010). Pursuing alternative transitional justice mechanisms may limit resources dedicated to criminal accountability.

Additionally, economic needs from other institutional sectors such as education, health, and the economy may trump demands for post-conflict justice (Elster, 2004, p. 213). Empirical studies find that relative affluence is linked to a higher likelihood of human rights prosecutions during democratic transitions (Kim, 2012), and more affluent countries have tended to select human rights prosecutions over alternative transitional justice mechanisms (truth commissions and amnesty laws) (Olsen, Payne, & Reiter, 2010). Infrastructure, training, and experience are additionally necessary for an impartial, effective, and legitimate judicial system (Akhavan, 2001), all of which may be lacking in the immediate aftermath of genocidal violence. For instance, despite millions in donor aid dedicated to judicial development, Rwanda’s ambassador to the United States, Theogene Rudasingwa, estimated that just over 100 prosecutors (most with only a high school education) and no more than 60 private lawyers resided in the country four years after the 1994 genocide (Akhavan, 2001). The destruction of Rwanda’s judicial system played into the state’s initial support for an international criminal tribunal and further prompted the state to implement a local-level, semi-formal judicial mechanism to prosecute the majority of suspected participants.

Nevertheless, more frequent indictments demonstrate that some governments have been able to overcome political hurdles and legal ambiguities to enforce genocide laws. The advantages and limitations of approaches at various levels have encouraged application of multiple forms of justice to a single case. Judicial responses to the 1994 Rwandan genocide exemplifies this approach, featuring prosecutions for participation and complicity in genocidal violence in international, foreign, national, and subnational jurisdictions. Based on empirical data of human rights prosecutions, Sikkink and Kim (2013) argued that domestic, foreign, and international trials complement one another, forming a “decentralized system of enforcement” led by national courts but reliant on international and foreign courts as “back-up” or “fail-safe” institutions. Having multiple jurisdictions capable and willing to prosecute human rights violations is vital, Sikkink and Kim (2013) argued, for achieving a “fully functioning” international model of accountability for mass atrocities. For example, proceedings in foreign courts, even if incomplete, may create pressure or impetus for domestic prosecutions. This “boomerang effect” (Keck & Sikkink, 1998) explains the domestic prosecutions of Pinochet-era atrocities in Chile, where proceedings before English and Spanish courts gave impetus to renewed proceedings before the Chilean courts despite once-insurmountable political obstacles.

Human Rights and Domestic Penal Policy

The growing number of countries that have incorporated human rights protections into their national constitutions (Beck et al., 2012, 2017; Elkins, Ginsburg, & Simmons, 2013) and established national human rights or ombudsman offices (Koo & Ramirez, 2009) speaks to states’ increasing willingness to incorporate human rights norms into national legal orders. First, the development of international criminal law has motivated some states to enforce these laws. Second, an international human rights regime has altered the penal landscape by offering a moral discourse, standards, and activist networks that have influenced how states punish.

Incorporating International Crimes

As discussed above, the criminalization of some human rights violations has resulted in punishment for many leaders and participants in mass atrocities. While prosecutions resulting from international criminal tribunals receive the bulk of popular and academic attention, domestic legal systems play a pivotal role in the punishment of mass atrocity crimes. Formally, the International Criminal Court provides a “complementary” legal mechanism exercised when national courts are “unwilling or unable genuinely to carry out the investigation or prosecution” (Rome Statute, 1998, Preamble and Part I, Article 17, 1[a]). Thus, save a few significant exceptions, territorial jurisdiction takes precedence over that of international criminal tribunals, and the primacy of domestic jurisdictions is now upheld through the ICC’s Rome Statute. Domestic judiciaries are also primary in practice, accounting for the vast majority of all legal proceedings against genocide and other atrocity crimes (Sikkink, 2011; Sikkink & Kim, 2013).

When committing to international law, states incur obligations to act. As of January 2018, 123 countries have ratified the Rome Statute, which provides the legal foundation for the International Criminal Court. Meanwhile, 149 countries have ratified the Convention on the Prevention and Punishment of the Crime of Genocide (Berlin, 2015; McElrath, 2019). These commitments, along with those to the Laws of War and other human rights treaties that criminalize apartheid, torture, and human trafficking (among other acts) have resulted in changes of national penal policies. Taking genocide as an example, two thirds of all countries have passed the necessary legislation to incorporate the crime of genocide into the domestic legal order. Some countries, such as Germany and Canada, have created special categories within their criminal codes that address international crimes. Other countries have simply added genocide, among other international crimes, as a common crime.

Enforcement of domestic atrocity laws worldwide is haphazard, with some countries prosecuting international crimes committed in other countries (e.g., Spain, Belgium) and some countries where incorporation of international crimes appears to be more symbolic than instrumental. Nevertheless, without domestic jurisdictions, widespread criminal accountability for participation in genocidal violence would be highly unlikely (Ronen, 2014; Sikkink & Kim, 2013). For example, while the International Criminal Tribunal for Rwanda (ICTR) has completed proceedings against just over 100 defendants, just under two million cases have been processed via domestic legal mechanisms, primarily the local, quasi-formal gacaca system adapted and in use from 1998 to 2008 (Brehm et al., 2014; Ronen, 2014). More broadly, Sikkink (2011) argued that domestic prosecutions against human rights abuses since the 1970s, rather than international efforts, sparked the development and spread of a global anti-impunity norm for atrocity crimes.

Reforming Criminal Justice

Aside from international crimes, the global human rights regime has been instrumental in recent reforms to existing laws for common crimes. For example, Frank, Hardinge, and Wosick-Correa (2009) and Frank, Camp, and Boutcher (2010) found that between 1945 and 2005 laws regulating sexual activity were apt to change in ways that protected individuals rather than collective entities such as the family. Focusing on individuals, world-society scholars note, is consistent with the acceptance of a human rights framework.

Additionally, the human rights regime has played a role in moderating the punitiveness of some countries for common crimes. For example, in the late 20th century, countries abolished the death penalty en masse. While most criminological analyses explain abolition by focusing primarily on state-level political and cultural processes (Greenberg & West, 2008), there is evidence that the promotion of abolition within the human rights regime has facilitated changes in policy and practice at the domestic level (Mathias, 2013). Examining the impact of world cultural factors on penal law, Mathias finds that the institutionalization of the human rights regime is significantly associated with de jure and de facto abolition of the death penalty. Like Frank et al. (2009, 2010), Mathias argues that domestic reforms reflect the global “sacralization” of the individual that results from a human rights paradigm.

Acceptance of the human rights paradigm varies across countries, moderating the impact of human rights discourse on national penal policy. In the United States, for example, domestic law, especially the Constitution, is viewed as superior to international law. While human rights concerns have had a strong impact on criminal justice practices in many Western countries, the human rights paradigm is relatively weak in the United States. Indeed, the United States has routinely resisted human rights norms in domestic practice, while supporting and even working to develop international human rights standards. It shares this approach with other powerful nations such as the People’s Republic of China and Russia.

Effects of HR Prosecutions

Several scholars have questioned the effectiveness of the human rights regime. Some identified decoupling—meaning that countries ratified human rights conventions but did not implement the resulting obligations—and even counterproductive effects (Hafner-Burton & Tsutsui, 2005). Also criminal justice intervention against grave human rights violations is hotly debated. Critics challenge, for example, the rise of universal jurisdiction and the power of domestic courts to try foreign citizens, which is summarized in the Princeton Principles of Universal Jurisdiction and justified by the recognition that human rights violations are offenses to all humanity. Such courts, they argue, have little sense of the harm their prosecutions may cause in the affected foreign country. Amnesties, truth commissions, and other transitional justice programs (and thus successful transitions to peace and democracy) could be at risk; for a review of critiques and responses see Vilmer (2015, pp. 109–117).

The ICC and other international courts are also targets of critique. They are said to suppress the consideration of power, which is necessary to assess the consequences of intervention and to balance legal accountability with political costs. Critics argue, for example, that filing charges against Serbian President Milošević by prosecutors of the ICTY made it harder for NATO to reach a deal with Serbia, thereby extending war and suffering in the Balkans in the summer of 1999. In 2011 critics challenged the ICC for its decision to charge Sudan’s president Omar al-Bashir with genocide at a time where his role in stabilizing relations with the newly independent South Sudan may have been crucial. In general, the concern is that perpetrators will not be willing to negotiate and abdicate their position of power if threatened by criminal trials (Goldsmith & Krasner, 2003; Pensky, 2008; Snyder & Vinjamuri, 2003).

Challengers of these skeptics include political scientist Kathryn Sikkink (2011), who offers an impressive new dataset with information on domestic truth commissions and domestic, foreign, and international trials for a 26-year period (1979–2004), covering 192 countries and territories. Sikkink finds that transitional justice does not typically lead to the strengthening of old forces and that the severity of offenses and the likelihood of trials are highly correlated (decisions for trials are thus not made lightly). And perhaps most importantly, Sikkink found that countries with more human rights trials show greater improvements in later human rights records, especially where trials were coupled with truth commissions. For South America, not a single case shows that holding a trial contributed to violent conflict and dislodged transition.

Jo and Simmons (2016) examined specifically the effects of ICC prosecutions. These scholars found that prosecution generates both “prosecutorial deterrence” (hesitancy to commit a criminal act based on concern of legal punishment) and “social deterrence” (fear of negative social responses based upon criminal behavior). Both mechanisms contributed to reducing violence. The authors show that the period following the introduction of the Rome Statute and the ICC and the onset of prosecution witnessed a reduction in killings by state actors, especially those who have supported the ICC and depend on the world community. Also rebel leaders kill less often, especially those who lead secessionist movements that strive for recognition by the world community (see Jo, 2015).

Other research moves away from a narrow focus on deterrence as an outcome of criminal court proceedings and toward a broader perspective that takes seriously the cultural potential of International Criminal Court decisions and their contribution toward violence reduction (Rowen, 2017). This new line of work points out the necessity of opening the black box between judicial intervention and human rights outcomes in the hope to better understand the mechanisms involved (Savelsberg, 2018).

Highlighting the potential of cultural consequences is in line with hopes prominent actors in the world of practice invested in one of the earliest efforts to pursue international criminal justice. President Roosevelt, in 1944, when he became convinced that court trials were an appropriate response to Nazi perpetration, “was determined [according to a confidant] that the question of Hitler’s guilt—and the guilt of his gangsters—must not be left open to future debate. The whole nauseating matter should be spread out on a permanent record under oath by witnesses and with all the written documents” (Landsman, 2005, p. 6). Similarly, Justice Robert Jackson, U.S. chief prosecutor at the International Military Tribunal in Nuremberg insisted that “we must establish incredible events by credible evidence” (Landsman, 2005, p. 6). Roosevelt and Jackson thereby added a history-writing function to the agenda of a criminal tribunal. The trial’s outcome was to shape the global collective memory of the Holocaust and of other Nazi crimes.

Even those who focus on deterrence leave the door open for the consideration of cultural effects. Sikkink (2011, p. 188), for example, concluding a chapter on the consequences of the justice cascade, states that “we can’t yet sort out clearly whether trials work mainly through deterrence and punishment or through socialization and collective memory.” Similarly, Jo and Simmons (2016), in response to a critical discussion of their deterrence-focused arguments, consider “[that] . . . the normative environment is critical to deterrence . . . The ICC has stimulated normative change within civil society through its justice outreach . . . More research to characterize the nature of said normative change would support our point.”

Excursus 2: Cultural Effects of Intervention—The Case of Darfur

For an illustration of cultural effects of criminal prosecution of human rights crimes, another reference to the case study of Darfur is in order (see “Excursus 1: International Interventions—A Case Study on Darfur”) (Savelsberg, 2015; Savelsberg & Nyseth Brehm, 2015). Data show that news media in a set of Western countries paid substantial attention to legal interventions in the Darfur conflict. Importantly, media attention to Darfur did not rapidly give way to reporting about other events as is common for comparable conflicts. It is likely that such unusually sustained attention results from several quasi-judicial and judicial interventions during this period.

Further, data show that several judicial intervention points are prominently reflected in the content of journalistic reporting, leading toward a preference for the crime frame. And reporting about killings and rapes reaches the highest levels during exactly those periods where use of the crime frame also peaks: the release of the ICID report, the prosecutor’s application for arrest warrants against Ahmed Harun and Ali Kushayb, and the application for (and the issuing of) an arrest warrant against President al-Bashir. Multivariate statistical analyses confirm that ICJ interventions intensify the depiction of the mass violence in Darfur as a form of criminal violence (Savelsberg & Nyseth Brehm, 2015).

Insights into news media’s receptivity to criminal court narratives are not new, as historian Devin Pendas’s impressive study of the Auschwitz trial shows. The trial was held in Frankfurt in the years 1963 to 1965, and the book pays special attention to its representation in the media and its public reception. Pendas concludes that the trial “proved to be much more than simply a trial. It was a cultural watershed. It was both a focal point and a wellspring for the politics of memory of the Federal Republic” (Pendas, 2006, p. 251). Importantly in this context, Pendas finds that journalism played a major role in this outcome. Media reported prominently and in detail about the trial throughout its proceedings.

Yet, media did not only draw widespread public attention to the trial and report the court’s determination of the criminal nature of the defendants’ actions. They also bought into the shortcomings of the trial. Being primarily concerned with “concrete guilt of the individual defendants” (Pendas, 2006, p. 291), the trial downplayed the organization of the criminal Nazi state. Further, the court devalued “the experiential truth of Auschwitz recounted by the survivor witnesses” for the benefit of “the judicial truth of individual agency” (Pendas, 2006, p. 291). Finally, the types of crime the trial brought to the eyes of the public were colored by the evidentiary rules of trial proceedings:

Torture and other individual atrocities represented in many respects an ‘easy case,’ compared with the ambiguous domains of responsibility and obedience that characterized bureaucratically organized genocide . . . Consequently, atrocity tended to occupy a privileged terrain compared to genocide.

(Pendas, 2006, p. 291)

Pendas attributes the diffusion of the court’s representation of Auschwitz, including its shortcomings, to journalism’s use of “realist” techniques, such as selected strings of exchanges between trial participants to increase the sense of drama. Similarly, “novelist” methods in the service of narrative fealty, such as atmospheric descriptions that extended to the defendants, contributed to

what might be termed the characterological style of objective newspaper reporting. [This style] entailed both a concern with personality and a tendency to reduce it to monadic types. And in this, a strong homology existed with the juridical emphasis on the subjective disposition of defendants and the assumption of a causal nexus between motivation and action.

(Pendas, 2006, p. 262)

While Pendas’s analysis thus confirms the representational power of criminal courts in human rights—and specifically genocide—cases, it simultaneously sheds light on constraints of criminal trials. They include (1) narrative limits imposed by the particular institutional logic of criminal law, (2) the political environment of international relations in which international courts operate, and (3) such courts’ dependency on the journalistic field if they want their message to reach a world audience.

First, court narratives are constrained by the institutional logic of criminal law. Criminal law, after all, focuses on the behavior of individuals. Structural conditions of genocide and larger cultural patterns that contribute to atrocity crimes, at the center of sociologically based narratives, are left out of the court’s representation. Further, criminal courts focus on behaviors defined as criminal by statutes or precedent. The actions of bystanders (and of protagonists in the world of cultural production) may well play a central enabling role; but they do not enter into the narrative of criminal courts. In addition, criminal courts follow specific rules of evidence that differ from those used by historians. This is appropriate in light of due process rules, but it further contributes to the narrative constraints of criminal courts. Finally, criminal law, even though it may recognize aggravating and mitigating circumstances, justifications, and excuses, is ultimately bound to a binary logic of guilty versus not guilty. Such simplification would neither be shared by social psychologists nor even by survivors of atrocity crimes who, like Primo Levy, are mindful of shades of gray. Importantly, media reports directly translate these constraints into their own depictions of the events at stake, given journalists’ literal reading of trials (Pendas, 2006).

Second, the challenge of substantive consequences of formal justice at times results in severe internal conflicts within international criminal justice. Within the ICC, for example, scholars find conflicting reasoning between lawyers versus technocrats, a chasm that is not limited to international criminal courts (Meierhenrich, 2014). On the one side of the dividing line is law’s formal rationality, which is oriented toward a system of legal criteria alone. Codifications such as the Rome Statute have indeed laid the groundwork for the pursuit of legal rationales, beginning to revolutionize a world in which foreign affairs used to be subject to political reasoning alone (Dezalay & Garth, 1998). Some legal philosophers in fact argue that international criminal justice and human rights law can secure legitimacy in the long run only through strict adherence to formal legal criteria and abstinence from political rationales (Fichtelberg, 2005). On the other side are those actors who are more concerned with substantive outcomes of court actions than with formal procedure, outcomes that in the types of cases under consideration may well involve the immediate survival chances of thousands.

Foreign policymakers who fend for the autonomy of international law obviously face contending forces within their own ministries and within in the United Nations. In addition, the Rome Statute opens the window for substantive political concerns to intrude into the work of the ICC. The UN Security Council, its permanent and temporary members—countries that are no strangers to the consideration of geopolitical and economic interests—are authorized to refer cases to the ICC and to put cases on hold. This intrusion of political rationales is institutionalized in Article 16 of the Rome Statute, a window built into the edifice of the statute to keep political considerations in plain view:

No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.

(Rome Statute, 1998)

Apart from external pressures, substantive outcomes of legal decision making also matter to jurists directly. Max Weber, in his classic work on the sociology of law, recognized how lawyers resent a notion of formal rationality that threatens to reduce them to an automaton into which one drops the facts and the fees for them to spew out the decision (and the opinion) (Weber, 1978). Instead, lawyers seek discretion, enabling them to consider ethical maxims or practical concerns of political, economic, or geopolitical nature in their legal decisions. The long history of criminal law speaks to this tension between formal and substantive rationality. In international criminal law, substantive considerations have particular weight, as thousands of lives may be at stake if conditions on the ground and practical consequences of legal decisions are disregarded (see diplomatic concerns about indictments of Sudanese President al-Bashir described in section “Effects of HR prosecutions”).

In short, despite its particular institutional logic, criminal law is no stranger to internal contradictions and conflicts. Conflicts between formal legal criteria versus substantive concerns, while dividing legal and political actors, also create ambivalences and internal tensions within the legal field. The ICC and other international justice institutions are set on a treacherous journey between the Scylla of formal-rational justice and the Charybdis of practical concerns in a highly politicised environment (Savelsberg, 2017, pp. 493–510). While extra-legal criteria, including fields of power, thus intrude into the sphere of law (Bergsmo & Lohne, 2018), law simultaneously transforms the world of international relations with its traditional focus on power (Klamberg, 2015; Sikkink, 2011).

Penal Policy’s Entry Into and Expansion in the Human Rights Field

The human rights regime was first codified in the Universal Declaration of Human Rights of 1948, promulgated after World War II and the Holocaust. While only the gravest of human rights violations have been criminalized, enforcement of penal law in this realm has intensified since the 1990s. Some scholars even diagnose a justice cascade for the late 20th century. Recent developments build on those first steps taken during the 19th century against the slave trade and with The Hague and Geneva Conventions, known as the Laws of War or Armed Conflict. They were followed by the Convention for the Prevention and Punishment of the Crime of Genocide (1948), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984), and eventually the Rome Statute (1998), on which the International Criminal Court is based. Establishment and enforcement of the norms entailed in these legal documents benefit from opportunities such as increases in international interdependencies, international organizations, and human rights NGOs. Challenges arise from governments and countries interested in denial and from partially competing principles and social fields such as humanitarianism and diplomacy, as actors in the latter often depend on cooperation with the perpetrating state. Another impediment is the lack of law enforcement agencies at the service of international criminal justice. While international institutions play a crucial role, much international law is implemented through domestic courts. International penal law pertaining to human rights has also affected domestic policymaking, for example in decisions on the death penalty. A final theme came in the form of debates on the effects of the criminalization of grave human rights violations. Proponents have thus far focused on potential deterrent effects, but a new line of scholarship provides theoretical reasoning and empirical support for the weight of cultural effects. Human rights trials have resulted in a redefinition of those responsible for mass violence as criminal perpetrators. International criminal law against those who bear responsibility for the gravest of human rights violations does appear to hold substantial representational power.

International Red Cross—Laws of War: Provides extensive resources on the Laws of War in effect through international and domestic law.

University of Minnesota Human Rights Library: An expansive online collection of core human rights documents.

United Nations—What are Human Rights? Provides the United Nations’ definition of human rights

TRIAL International: Up-to-date information on the use of international criminal law worldwide.

Further Reading

Bergsmo, M., & Lohne, K. (Eds.). (2018). Power in International Criminal Justice: Towards a Sociology of International Justice. Oslo, Norway: TOAEP.Find this resource:

    Elster, J. (2004). Closing the books: Transitional justice in historical perspective. Cambridge, UK: Cambridge University Press.Find this resource:

      Hagan, J. (2003). Justice in the Balkans. Chicago, IL: University of Chicago Press.Find this resource:

        Hagan, J., & Levi, R. (2007). Justiciability as field effect: When sociology meets human rights. Sociological Forum, 22, 372–380.Find this resource:

          Hagan, J., Schoenfeld, H., & Palloni, A. (2006). The science of human rights, war crimes, and humanitarian emergencies. Annual Review of Sociology, 32(1), 329–349.Find this resource:

            Huneeus, A. (2010). Judging from a guilty conscience: The Chilean judiciary’s human rights turn. Law and Social Inquiry, 35, 99–136.Find this resource:

              Jo, H. (2015). Compliant rebels: Rebel groups and international law in world politics. Cambridge, UK: Cambridge University Press.Find this resource:

                Klamberg, M. (2015). Power and law in international society: International relations as the sociology of international law. London, UK, and New York, NY: Routledge.Find this resource:

                  Minow, M. (1998). Between vengeance and forgiveness: Facing history after genocide and mass violence. Boston, MA: Beacon Press.Find this resource:

                    Porsdam, H. (2009). From civil to human rights: Dialogues on law and humanities in the United States and Europe. Northampton, MA: Edward Elgar.Find this resource:

                      Rowen, J. (2017). Searching for truth in the transitional justice movement. Cambridge, UK: Cambridge University Press.Find this resource:

                        Savelsberg, J. (2010). Crime and human rights: Criminology of genocide and atrocities. London, UK: SAGE.Find this resource:

                          Savelsberg, J. (2015). Representing mass violence: Conflicting responses to human rights violations in Darfur. Oakland: University of California Press.Find this resource:

                            Sikkink, K. (2011). The justice cascade: How human rights prosecutions are changing world politics. New York, NY: W. W. Norton.Find this resource:

                              Simmons, B. A., & Danner, A. (2010). Credible commitments and the International Criminal Court. International Organization, 64(2), 225–256.Find this resource:

                                Vilmer, J.-B. J. (2015). La responsabilité de protéger. Paris: Presses Universitaires de France.Find this resource:

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                                                                                                                                                                                                                                                        Notes:

                                                                                                                                                                                                                                                        (1.) See International Committee of the Red Cross: “Geneva Conventions and Commentaries” and “Treaties, States Parties and Commentaries.”

                                                                                                                                                                                                                                                        (3.) In the 21st century, the definition has expanded to include additional acts that can constitute genocide. Most notably, the International Criminal Tribunal for Rwanda found rape to be an act of genocide (see Miller, 2003).

                                                                                                                                                                                                                                                        (4.) See University of Minnesota Human Rights Library, International Human Rights Instruments.

                                                                                                                                                                                                                                                        (5.) In addition to the UN tribunals for atrocities committed in the former Yugoslavia (ICTY) and Rwanda (ICTR), the United Nations has contributed to ad hoc “hybrid” tribunals to address atrocities in Cambodia, Sierra Leone, Lebanon, Timor-Leste, Libya, and Cote d’Ivoire and has provided assistance to judicial systems in Kosovo and Guatemala.

                                                                                                                                                                                                                                                        (7.) In the fall of 2014, the prosecutor’s decision to withdraw charges against President Kenyatta of Kenya provided a poignant example of high-level diplomacy interacting with the judicial field.