International Criminal Tribunals as Actors of Domestic Change

Abbreviations

a Do not confound with the Republic of Serbia! The name is sometimes not at all translated, and sometimes it is translated into “The Republic of Srpska”.

b Name of the joint statelet of Serbs in Croatia. See also: SAO.

c Name of mainly Serb-inhabited entities in Croatia before their merger.

d UN mission in BiH.

Introduction

When the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were created, they were first and foremost expected to do justice and prosecute perpetrators of the most heinous crimes. However, in the respective United Nations General Assembly resolutions and the resolutions of the UN Security Council, the tribunals were also expected to contribute to peace-keeping, the stabilization of the countries under their jurisdiction and even – in the case of Rwanda – to reconciliation. Later on, judges at both tribunals referred to these expectations, justifying some of their judgments and decisions with the aim to contribute to reconciliation, either by invoking the (alleged) will of victims or the (also alleged) need to reintegrate perpetrators.¹

The hopes of these international tribunals’ founders were often shared by the media and the wider public. International criminal tribunals (ICTs) were not only expected to judge crimes and criminals, but also to reunite broken communities, prevent revenge, deter potential perpetrators from committing crimes, and deliver convincing and unifying narratives about the atrocities that had taken place. Although these hopes overstretched the capacities of the tribunals, their representatives often referred to them and sometimes even tried to achieve them. One of the more specific expectations in this context was the wish of many, the tribunals might “shrink the space of denial”.² By exposing unknown or supressed facts about past atrocities and by condemning them publically, the tribunals were expected to prevent communities, community leaders, and the media from claiming that these atrocities had ever taken place, had been invented by their former enemies, or were part of a conspiracy against the deniers’ community. The wish to curb denial was the main motive behind the creation of an outreach program by the ICTY.³ This motivation was much weaker in the case of the ICTR (which also had a less dynamic outreach program), because the prevention of ←15 | 16→genocide denial quickly became a main task for the Rwandan judiciary and after the consolidation of the post-genocide Rwandan state an objective, which the judiciary, law enforcement, and the educational sector in Rwanda took over. For the scattered Rwandan exile communities overseas and in the refugee camps in Zaire (today the Democratic Republic of the Congo), Tanzania, and other parts of Africa, the ICTR outreach program had no relevance.⁴

At the International Criminal Court (ICC) which became operational in July 2002, outreach and extra-judicial tasks had less importance, due to the limited scope of judicial intervention which the ICC can undertake. The Rome Statute limits the ICC’s possible interference to cases, where a country is either unwilling or unable to prosecute international crimes under the Rome Statute. As long as a government can show its willingness and capacity to hold perpetrators of such crimes accountable, there is neither a need nor a way for the ICC to step in. Additionally, the gravity threshold of the Rome Statute also restricts the ICC’s possible interference to cases of very grave crimes and high-ranking perpetrators. Opposite to the ICTY and the ICTR, the ICC does not work under a primacy principle which would give it the right to claim any suspect and take over any case it deems appropriate, but it functions as a kind of “court of last resort” which can only take over cases which are not being judged by the respective country. Because the examination whether a country is willing and able to prosecute a crime usually takes quite a lot of time, the ICC often takes over cases concerning atrocities which took place several years ago. All this makes it much more difficult for the ICC to shrink the space for denial, or, in general, to fulfill extra-judicial tasks like reconciliation and post-conflict stabilization.

The literature about ICTs and International Criminal Law (ICL) is dominated by lawyers, who focus on ICTs’ tasks, the material and institutional law applied by ICTs and discuss the functioning of the tribunals and the coherence of their jurisprudence from a theoretical perspective. A part of this literature meanders between law and sociological institutionalism and is busy with the tracking of decisions, trying to reveal how and why certain decisions at ICTs are taken and how they are influenced by external and internal factors.⁵ This bulk of research ←16 | 17→dealing with “process control” is supplemented by a growing literature dealing with the relations between intra-court decision making and the wider public, and it often concentrates either on issues of judicial behavior (how judges and courts are influenced by external factors)⁶ or on the question how courts and judges are influencing perceptions of the public and media coverage. This is at the core of this publication’s interest. It tries to detect whether – and if yes, how – tribunal decisions impact public opinion or, more precisely, media frames. It contributes to a scholarly debate which has lasted for several centuries and whose core forms the discussion about Kathryn Sikkink’s “justice cascade”.⁷