Editor’s Note: This post is part of series discussing the 2009 EJIL Article by Professor Kenneth Anderson: “The Rise of International Criminal Law: Intended and Unintended Consequences,” . Previous posts in this discussion were by Ken Anderson (see here, here here and here), Brad Roth and Amrita Kapur. You can read these posts by clicking on their names in the list on the right.
Update: This post was originally posted under the name of Dapo Akande. This was incorrect.
I would like to thank Brad Roth and Kenneth Anderson for their thoughtful engagement (see here and here) with my previous contribution to this discussion (see here). Given the time that has elapsed since our discussion, I will restrict this response to a number of discrete issues raised by both.
Firstly, despite taking issue with my approach, Roth nonetheless reaffirms a number of propositions already contained in my earlier contributions, including on the possibility of ‘false positive’ cases of intervention, the procedural flaws of criminal prosecution, and the difficulties in prosecuting those most responsible. He correctly challenges the feasibility of ‘an authoritative condemnation of perpetrators’ when the ‘use of ruthless methods by …. non-pathological’ actors gives rise to a too-large pool of potential ICL defendants and consequently, prosecutorial selectivity. My complete agreement with these sentiments is reflected in my previous post, which criticizes the criminal prosecutorial process as a method by which justice is achieved because of its inherent procedural flaws.
I neither expect prosecutions to necessarily achieve an ‘authoritative’ condemnation of all perpetrators, nor do I believe they are essential to, intended to, or in fact, reaffirm the dignity of the victims: criminal trials have never revolved around victims, who are treated merely as witnesses for the ‘wronged’ state. In both my EJIL article (which responds to Ken Anderson’s original article) and my post, I embrace a broader notion of justice which includes mechanisms such as truth commissions, reparations, lustration and memorialization efforts as part of a multi-faceted response to systematic or widespread violations of human rights (also termed transitional justice). It is these non-prosecutorial initiatives that specifically seek to recognize victims and promote possibilities for peace, reconciliation and democracy. Read the rest of this entry…