From Indifference to Engagement: Bystanders and International Criminal Justice

83 Pages Posted: 18 Aug 2005

See all articles by Laurel E. Fletcher

Laurel E. Fletcher

University of California, Berkeley - School of Law

Abstract

The establishment of international criminal tribunals to respond to mass atrocity is based, in part, on the assumption that prosecutions promote reconciliation. This article explores the way in which international criminal law addresses bystanders of mass violence. It argues that by focusing on individual defendants, law frames accountability in a manner that both encourages and discourages bystanders - community members who were not involved in criminal acts - to reconcile with former enemies. Based on an ecological paradigm of social reconstruction in which international criminal trials are understood as one of many interventions needed to promote processes of social repair, this article examines how these trials frame the relationship of bystanders to the crimes through analysis of a judgment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Prosecutor v. Simic et al. This article argues that law's response to mass violence constricts its ability to promote reconciliation. To overcome this vulnerability, international justice mechanisms should adopt a dual identity and act to promote legal justice as well as to address the ways trials impede reconciliation. This article proposes a model for community outreach for international justice mechanisms to address the negative social impact of trials.

Keywords: Human rights, public international law, humanitarian law, transitional justice, international tribunals

JEL Classification: K33, N40

Suggested Citation

Fletcher, Laurel E., From Indifference to Engagement: Bystanders and International Criminal Justice. Michigan Journal of International Law, Forthcoming, UC Berkeley Public Law Research Paper No. 780404, Available at SSRN: https://ssrn.com/abstract=780404

Laurel E. Fletcher (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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