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International Criminal Justice and the Protection of Human Rights: The Rule of Law or the Hubris of Law?

Written by  James J. Silk

At the beginning of the twenty-first century, we might say of our times, it was the age of human rights, it was the age of genocide and torture, it was the era of abundance, it was the era of hunger, it was the dawn of global justice, it was the enduring night of deprivation and abuse. Despite the relentless reports of atrocities and human suffering, human rights activists and critics alike have recently identified human rights as “the idea of our time, the only political-moral idea that has received universal acceptance,” “the dominant moral narrative for thinking about world affairs,” and “the major article of faith of a secular culture that fears it believes in nothing else[,] . . . the lingua franca of global moral thought.”

And just as the language of human rights dominates international moral discourse, an international criminal justice paradigm has recently come to dominate human rights discourse. Michael Ignatieff has called the development of institutions for holding human rights abusers criminally accountable “the enforcement revolution in human rights.” Human Rights Watch, which has been at the forefront of efforts to establish and utilize such mechanisms of international criminal justice, calls these developments “the beginning of a new era for the human rights movement” and describes this era as one “in which the defense of human rights can move from a paradigm of pressure based on international human rights law to one of law enforcement.” Indeed, until recently, discussing the progress of human rights largely meant recognizing the establishment and proliferation of conventional and customary norms, while lamenting the weakness of international enforcement mechanisms. Advocates for the protection of human rights yearned to make the increasingly well-settled international law of human rights work like effective municipal legal systems by providing for courts that could prosecute and punish violators. As the international community greets with enthusiasm the emerging realization of this goal—the establishment of a prosecutorial model of human rights protection—it is appropriate to ask whether getting what we wished for may be cause for concern as well as hope.

The key elements of the “enforcement revolution” are well known: the creation by the U.N. Security Council of the ad hoc criminal tribunals for the former Yugoslavia and Rwanda; their jurisprudence and their record of indictments, arrests, trials, and sentences; the adoption of the Rome Treaty to establish the International Criminal Court; the arrest of General Augusto Pinochet and the proceedings in Britain and Chile that followed; and the “post-Pinochet” efforts to bring human rights abusers from one state to justice in the courts of another on the basis of universal jurisdiction. All of these institutions and processes reflect a single approach to international human rights enforcement: the retrospective criminal prosecution of individuals alleged to be responsible for particularly egregious human rights violations. Advocates for this international criminal justice, or prosecutorial, model generally presume that its achievement will advance human rights, not only because bringing serious abusers to justice is a good in itself, but because it will be a boon to human rights protection. Justice for perpetrators of serious human rights abuses is a good, and international prosecutions are important both because they may achieve justice in cases where it would be impossible domestically and because they help solidify international norms prohibiting these abuses. For these reasons alone, the recent development of international criminal justice represents a significant advance. But the relationship between all this and protection cannot be as easily assumed. In fact, the current domination of human rights discourse by international criminal justice may have implications that are problematic for human rights protection.

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