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


James J. Silk


Yale University - Law School

August 21, 2009


Abstract:     
Human rights discourse has been increasingly dominated by international criminal justice. The ability to bring perpetrators of serious human rights violations to justice internationally is an important development and a good in itself, but contemporary enthusiasm for international criminal justice also reflects a misplaced confidence in its potential to achieve the fundamental goal of human rights law: the protection of people from abuse. This confidence, which relies on a belief, almost wholly speculative, in the power of international prosecution as a general deterrent for would-be abusers, may even undermine efforts to protect human rights. First, the delusion of deterrence may provide the international community with a rationalization for avoiding timely, effective protective action. Second, the emphasis on retroactive individual responsibility may shift focus away from the state and other powerful institutions, diminishing the likelihood that the international community will hold them contemporaneously accountable for, and take effective political action to stop or prevent, abuses. Third, the narrow focus of international criminal justice - on a few individuals in a few states for the very worst crimes - relegates the vast majority of rights to a second-class status; this may contribute to the global failure to address the marginalization and poverty underlying most abuses affecting most people, abuses that are the usual precursors of the gross violations international criminal justice addresses. These concerns gain significance in light of the tremendous cost of international prosecutions and the minimal resources the international community has been willing to devote to human rights. Finally, respect for human rights requires social change, which ultimately relies on effective social movements. Overemphasizing prosecutions in international tribunals, extremely remote, elite institutions, can reinforce local forces that weaken or suffocate social movements.

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Date posted: August 22, 2009  

Suggested Citation

Silk, James J., International Criminal Justice and the Protection of Human Rights: The Rule of Law or the Hubris of Law? (August 21, 2009). Available at SSRN: http://ssrn.com/abstract=1459513 or http://dx.doi.org/10.2139/ssrn.1459513

Contact Information

James J. Silk (Contact Author)
Yale University - Law School ( email )
P.O. Box 208215
New Haven, CT 06520-8215
United States
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