Courting Failure: When are International Criminal Courts Likely to Be Believed by Local Audiences?
THE OXFORD HANDBOOK OF INTERNATIONAL CRIMINAL LAW, Kevin Jon Heller, Frederic Megret, Sarah Nouwen, Jens Ohlin, Darryl Robinson, eds., Oxford University Press, Forthcoming
37 Pages Posted: 24 Dec 2016
Date Written: December 18, 2016
The primary role of international criminal courts and tribunals is to punish those deserving of punishment. But beyond dispensing individualized justice, the question still remains whether such tribunals can also help deeply traumatized and divided societies heal on a more fundamental level. To do that, the factual accounts these tribunals produce – about the guilt of specific individuals for specific crimes, but also about the systemic nature and causes of these crimes – at least at some point need to be accepted by their local audiences. Crimes need to be believed to be remedied.
Some courts, like the International Criminal Tribunal for the Former Yugoslavia, have failed in this broader task. But is every international criminal court or tribunal similarly doomed to fail? Can we at least with some measure of reliability predict when such failure is likely? Drawing on research in social psychology and on a series of opinion polls in the former Yugoslavia, as well as on an analysis of the successes and failures of the Nuremberg, Tokyo, Rwanda, Sierra Leone and Cambodia tribunals, this chapter puts forward such a general predictive theory.
The chapter thus argues that whether an international criminal tribunal and its account of responsibility for committed atrocities will be trusted by local populations depends little on the quality of the tribunal’s work, the fairness of its procedures, or the scope of its outreach programme. It depends mostly on whether the tribunal’s outputs – decisions on whom to prosecute, convict, or acquit – align with what these populations want to hear in their particular context and at that particular time. Psychological mechanisms of identity-protective reasoning can easily lead to the widespread rejection of the relevant tribunal and its factual account. Whether this will in fact happen depends largely on one variable – the reaction of dominant local political, media and intellectual elites. The likelihood and potency of an adverse reaction can, in turn, be predicted by reference to four factors: (1) the degree of continuing group cohesion and polarization; (2) the degree of elite continuity in terms of both personnel and ideology; (3) the degree of authoritarianism in the relevant society; and, most importantly (4) the degree of threat that the work of the tribunal is perceived to pose to the power and influence of these elites.
Keywords: international criminal law, mass atrocities, war crimes, genocide, transitional justice, public opinion, surveys, social psychology, cognitive biases, ICTY, Yugoslavia
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