From Prosecutorial to Reparatory: A Valuable Post-Conflict Change of Focus

Abstract

For the last two decades, criminal trials have occupied center stage in the international community’s panoply of responses to mass atrocities. Although it is often observed that a variety of transitional justice measures serve a variety of valuable ends, the international community views criminal trials as the centerpiece response to mass violence, the gold standard of transitional justice mechanisms. The elevated status of prosecutions is reflected in the resources and energy that the international community devotes to international criminal justice: In the last two decades, international courts and tribunals spent nearly $6 billion to prosecute fewer than 300 offenders. This article assumes that prioritizing criminal justice in this way is normatively appropriate as a theoretical matter, but after engaging in a functional analysis, the article concludes that the international community should re-prioritize. In particular, it should divert energy and resources away from prosecutions and toward financial reparations for victims. The analysis proceeds as follows: Part I determines that international criminal tribunals confront near-disabling challenges in enforcement, fact-finding, and selectivity, challenges that render them unable at this point in time to carry out a sufficient number of prosecutions sufficiently well. Part II considers whether the international community could more effectively compensate victims and concludes that it could. Part III then explores whether the greater efficacy of reparations justifies a large-scale change of focus from the prosecutorial to the reparatory. It concludes that it does, in part because reparations are themselves tremendously valuable to victims, but more importantly because the international community was overly ambitious in its focus on international criminal justice and now needs to retrench. The field of international criminal law currently is in crisis, and the best way to preserve its viability in the decades to come is to reduce its scope, minimize its importance, and pursue wholeheartedly a post-conflict mechanism that can be carried out effectively.

Keywords: International criminal prosecutions, reparations