What is International Criminal Justice

What is understood by the phrase 'international criminal justice' is surprisingly difficult to articulate comprehensively. At a fundamental level, it describes the response of the international community – and other communities to mass atrocity. This seems to be a broadly accepted definition. How we respond to war, to the rupture of society and to systematised murder and persecution, is at the heart of the issue. What forms of transitional justice are attempted and how their goals are achieved, or at least attempted, are all importance responses. But international criminal justice is about more than responses. How do we learn from history, or sometimes fail to do so? Can we use our understanding of human psychology to respond better to mass atrocity, or to prevent or address it sooner? What of the sociological elements that are infused in our response to heinous international crimes; how do these affect our understanding and practice of international criminal justice? This chapter explores some different perspectives and disciplinary approaches to this complex area, including political, historical and sociological perspectives.


I. INTRODUCTION
What is understood by the phrase 'international criminal justice' is surprisingly difficult to articulate comprehensively.At a fundamental level, it describes the response of the international community-and other communities-to mass atrocity.This seems to be a broadly accepted definition.How we respond to war, to the rupture of society and to systematized murder and persecution, is at the heart of the issue.Which forms of transitional justice we respond with, and how our goals are best achieved, are important questions. 1 But international criminal justice is about more than responses.How do we learn from history or, sometimes, fail to do so?Can we use our understanding of human psychology to better respond to mass atrocity, or better, to prevent it or react to address it sooner?What of the sociological elements that are infused in our response to heinous international crimes; how do these affect our understanding and practice of international criminal justice?
This chapter explores some different perspectives and disciplinary approaches to this complex area, including political, historical and sociological perspectives.This is important because, while as international lawyers we have raised important questions about legitimacy and coherence, we do not always open ourselves to a genuinely multidisciplinary approach to what it means to talk about international criminal justice.One might say that the obvious embodiment of international criminal justice comes in the form of international war crimes trials.All alternative responses, at least in the context of contemporary international relations, might be referred to as 'other'.
The trial of individuals for the commission of the core international crimes-genocide, crimes against humanity or war crimes (and possibly aggression, after 2017)-is a powerful weapon in the armoury of international criminal justice.The proliferation of international and internationalized war crimes tribunals which began in the 1990s 2 in some respects culminated in the creation of the International Criminal Court ('ICC'), a project that might be said to have been first seriously considered by Gustave Moynier in the 1860s. 3As recent referrals to the ICC by the Security Council of the situations in Sudan and Libya confirm, the international community very much views war crimes trials as an important response to conflict and atrocity.This preference, and the implications of this for international criminal justice, is an important theme that must continue to be discussed.
There is of course a range of responses to atrocity.Truth and Reconciliation Commissions, of which there have been over 30 since the 1970s, 4 reflect a less retributive, more reconciliatory emphasis.Other, community-based, approaches reflect a more culturally specific response to the subject matter of international criminal justice.Examples of this include the Gacaca courts in Rwanda, 5 the Fambul Tok in Sierra Leone 6 and the Mato Oput in Northern Uganda. 7nother aspect of the international criminal justice patchwork is the extent to which it engages other disciplines.As already mentioned, this field has been traditionally viewed as a strictly (or at least predominantly) legal discipline, with images of the trial of the major war criminals at Nuremberg, and more recently the Miloševic ´or Taylor trials, standing as masculine statements that impunity will not stand.However, an increasing sensibility has emerged in relation to other disciplines and views.Clearly, a discussion about what international criminal justice is requires a broader analysis than that offered by international criminal law.Like international justice itself, different voices speak to the content and meaning of this complex topic and struggle to influence outcomes and processes.
Further fundamental questions about the coherence and legitimacy of international criminal justice itself are prompted by whether these voices are heard, and how they influence our understanding and responses.It is the purpose of this chapter then to examine some of these threads, to hear some of these voices and to consider them under the broad question: what is international criminal justice?

A. Development of International War Crimes Trials
A reasonable place to start is the development of international war crimes trials.The first real example of this followed the Second World War.Nuremberg was to bring to justice the most senior German perpetrators of atrocities committed at the beginning of and during the War.US prosecutor, Robert Jackson, emphasized that while the trial was clearly one carried out by victorious nations over the vanquished, this did not mean that the court could surrender to an inevitable 'victor's justice'. 8hese Nazi war criminals were to be given a 'fair and dispassionate hearing', 9 a fair trial, and accorded the presumption of innocence.Moreover, he emphasized that the purpose of the trial was to incriminate the German leaders, not to act as an indictment upon the German people. 10The individual was thus on trial, but not the state, and not the population.The extent to which these impressive and lofty goals were achieved has been heavily debated in the 60 plus years since that trial 11 and will no doubt continue to be assessed in light of the work of the modern war crimes tribunals.

B. War Crimes Trials from the 1990s-The New Model
While some important domestic war crimes trials were held between the 1940s and the 1990s, 12  front until the creation of the International Criminal Tribunal for the former Yugoslavia ('ICTY') in 1993 to try those accused of committing war crimes in the course of the Bosnian conflict.The aims and goals of this tribunal were not dissimilar to those in Nuremberg-to provide redress for the victims of atrocities, to express the moral outrage of the international community, to provide a vehicle of retributive justice and, of course, to stand as a deterrent to those who would repeat such heinous crimes in the future.
There were, however, some noteworthy differences and interesting features to this new model.For a start, it (happily) lacked the features of victor's justice that had marred the successes of the post-War tribunals.Of course, the Serbs complained that they were the target of the Tribunal and that this was a new version of victor's justice, wielded by the US, Germany and others through the UN system.Such accusations are understandable but quite wrong. 13They also distract argument away from other far more legitimate challenges to the ICTY and other international tribunals, which relate to the politics of selecting which crimes to prosecute, in which regions of the world, and why. 14nother feature of the Yugoslav and Rwanda Tribunals was the fact that the Security Council created them as a measure, under Chapter VII of the UN Charter, to restore and maintain international peace and security.Apart from an early challenge within the ICTY 15 and some highlight that 'the intervention of the Cold War saw both the concept and practice of international criminal justice removed from the forefront of global politics and relations': Findlay and McLean, above note 4, 458.The fact that the ad hoc tribunals were set up under Chapter VII of the UN Charter made their relationship with the conflict in their respective regions necessarily deeper than a traditional criminal jurisdiction.Any criminal court established as a measure to re-establish peace and security must surely need to contribute to reconciliation and sustained postconflict measures to stabilize the region.Additionally, to the tribunals' credit, they espoused broader goals of accountability and justice-in their judicial and political rhetoric, as well as in substantive areas of their core work.An important example of this was reference to a contribution to reconciliation as a mitigating factor in sentencing. 17he other interesting aspects of the new tribunal model were the development of a human rights regime since the post-War tribunals and the effect of the jus cogen norm of a right to a fair trial on the work of these courts.

C. The Special Place of the International Criminal Court
Like Nuremberg, modern war crimes tribunals focus primarily on the senior participants in the conflicts addressed.The era of ad hoc and hybrid tribunals might be seen, in one sense, as preparatory work for the creation of the now functioning ICC.Determined somewhat optimistically in its statute to 'put an end to impunity', the ICC operates on a predominantly similar model to that of the ad hoc tribunals.Its struggle for existence through several International Law Commission drafts and the derelict Cold War years may have created an odd psychological facet to the Court, which on one level is played out in its substantive legal work.The Court is regarded, and regards itself, as the pre-eminent expression of global retributive justice.It is empowered to investigate crimes within its various jurisdictional limitations and is used as an increasingly important (albeit selective) aspect of the Security Council's redress of atrocity.An important example is Security Council Resolution 1970, referring the Libya situation to the ICC. 19he Court is under pressure to investigate an enormous range of crimes and conflicts, develop technical assistance to states through a policy of positive complementarity, and develop an expeditious and efficient pretrial, trial and appeal model-a task acknowledged by its own judges to be proving difficult. 20

D. Where do War Crimes Trials Leave Us in Relation to
Understanding International Criminal Justice?
So where do war crimes trials leave us in relation to understanding international criminal justice?As Bass put it, the various objectives for international war crimes tribunals include: 'to bring justice, establish peace, outlaw war altogether, erase bitterness, or to establish new international norms that will help lift us out of anarchy'. 21Considering these lofty goals, can it be said that war crimes trials are a successful method of achieving international criminal justice?Do they at least contribute to ending impunity?Are they really a deterrent for murderous dictators and would-be genocidaires?Do they promote reconciliation in transitional communities?Or do they adversely impact on community rebuilding and on victims' need to establish the truth, to be heard and to take control of their own narrative?
Of course, it is not simply a question of spouting platitudes about impunity and justice.For war crimes trials to work, the accused must be tried fairly and expeditiously, account must be had of the role and rights of victims (individual and community) and the place of reconciliation must at least be considered in the process.There are a number of impediments, some external and some self-created, that these tribunals face in achieving even the most basic aspect of these goals.
The most pressing external problem facing the international tribunals has been a varying preparedness on the part of states to support them.For example, states have at times demonstrated a reluctance to arrest accused perpetrators.This can be explained in part by the 'unwillingness of even liberal states to endanger their own soldiers either by arresting war criminals or in subsequent reprisals' 22 and in part by the role national interest 'shaped by political culture … dictates whether or not states support the international criminal tribunals'. 23nternational criminal tribunals also face challenges partly of their own making in the form of their internal procedures, which have had a tendency to frustrate the expedient running of the trial process.These factors-including lack of prosecutorial restraint, a preparedness on the part of the courts to implement their powerful case management provisions and trial inefficiencies-have been recited at length elsewhere, 24 but they continue to plague the work and viability of these important institutions.
At the same time, the international tribunals have enjoyed a number of successes in attempting to fulfil their mandate to try those accused of war crimes.First, it is important not to take the existence of international criminal tribunals and international criminal law for granted.The existence and legitimacy of international criminal law as a body of law was 22 Bass, above note 1, 277.being questioned as recently as the 1980s, 25 although thankfully that debate can now be put firmly to one side.The creation of these tribunals as a juridical response to mass atrocity is an achievement in and of itself, and the broader impact these tribunals have had both in a punitive sense and as a deterrent should not be underestimated. 26econdly, despite the myriad complexities associated with war crimes trials, the fact that modern international criminal law has been crafted from next to nothing in under 20 years is an extraordinary achievement.A significant number of trials have been held at the international criminal tribunals and, while far from perfect, they represent something of a credible system of criminal justice that responds to unspeakable crimes.The oft-referred to 'road from Nuremberg to The Hague' was a difficult one, and many questions await reply from the ICC, but the international community continues to value such a juridical response. 27

E. National War Crimes Trials-A Lack of Action
Despite ratification of the Rome Statute of the International Criminal Court ('Rome Statute') leading to the implementation of legislation in numerous countries, and despite the ICC clearly being set up by states as a court of last resort, there is little evidence that states are enthusiastically taking to the task of trying war criminals under their domestic criminal justice systems.While Belgium in the early part of this century exploded into action as the state of universal jurisdiction, the Arrest Warrant case However, Bass takes a more skeptical view as to whether war crimes trials are an effective deterrent, noting that it is 'far from clear that war crimes tribunals have much of a deterrent effect'-Bass, above note 1, 291, 294-5.On the other hand, Peter Galbraith states: 'I thought the whole war crimes issue was a very effective tool to stopping war crimes'-Bass, above note 1, 295.Wippman, quoted in Findlay and McLean, above note 4, 474, notes '[t]hat for many "deterrence is the most important goal" of tribunals'.before the International Court of Justice ('ICJ') 28 and some bullying from then US President George W Bush and his Secretary of Defence Donald Rumsfeld, 29 extinguished this brief excitement.The general disposition of states-particularly those of the common law persuasion-is well reflected in the experience of Australia, Canada and the UK, where few prosecutions have been launched, and fewer still have been successful. 30hether the unwillingness of able states to prosecute crimes of mass atrocity is a threat to the capacity of the retributive model is difficult to assess, but it seems likely to be one.

F. The Threat to International Criminal Justice Posed by
Guantanamo Bay and the 'War on Terror' Another, slightly sinister, development in the response to mass atrocity has arisen following the 9/11 attacks in the US.The 'war on terror' has led to some genuine challenges to the legitimacy and coherence of international criminal justice. 31The use of Guantanamo Bay as a holding  32 and exclusion from state-based jurisdiction for the purpose of denying accused persons basic criminal process rights-including the jus cogens norm of a right to a fair trial 33 -posed a serious threat to international criminal justice and the rule of law.The war on terror also gave birth to the implementation of counter-terrorist measures that threatened some of the fundamental criminal process rights in countries that have a highly developed system of criminal justice. 34Finally, and significantly, responses to the Al Qaeda attacks have led the US and its allies into full-blown international armed conflicts, some with lawful justification (Afghanistan) and some without (Iraq).
Some of these measures have an inevitable and unavoidable relationship with international criminal justice.The development and application of substantive and procedural criminal law in one jurisdiction affects that in another.The preparedness of one or more states to bypass fundamental principles and defensible interpretations of the law when trying certain kinds of accused, or when deciding to prosecute one conflict or party over another, has certain consequences.It creates a challenge to the legitimacy of a juridical response to atrocity and social rupture, because inconsistent and sui generis responses open international criminal justice up to allegations of partiality and prejudice-perhaps a modern, post-Nuremberg version of 'victor's justice'.Also, varying structures and practices across war crimes tribunals can lead to a sense of incoherence, which in turn raises questions of legitimacy. 35

What is international criminal justice?
Another unavoidable aspect of this is the employment of permissive universal jurisdiction as a structural underpinning in international criminal justice.While international criminal tribunals can rely upon Security Council resolutions, engaging the UN Charter's Chapter VII powers, or, in the case of the ICC, multilateral treaty agreements or self-referral measures, the reality is that the entire system of international criminal justice is predicated on various expressions of universal jurisdiction. 36atural law conceptions of humanity and protection of communities are infused with the dialogue of what is international criminal justice; these require a sense of an 'international community' acting 'collectively' against certain opprobrious behaviour.In this way, international criminal justice is an expression of global community-a dysfunctional one to be sure-but, just as any community needs rules and a predictable application of them, so too does international criminal justice need to reflect such principles.
All of this suggests that while war crimes trials remain the preferred model for addressing mass atrocity (at least at the UN level), serious questions about coherence and legitimacy remain.The risk is that a pluralistic and diverse expression of principle could unravel into a chaotic and fragmented system of justice.The US system of military tribunals post-9/11 certainly showed just how much of a threat this was.Worse, perhaps, is that a lack of commitment from states-political, strategical and financial-is always a possibility.

III. RESTORATIVE JUSTICE
For all the emphasis that has been placed on a retributive model, it is not the only expression of international criminal justice.As Richard Goldstone has pointed out, prosecution is 'not the only form [of justice], nor necessarily the most appropriate form in every case'. 37Restorative justice approaches mass atrocity and social rupture from a very different 36 See The Princeton Principles on Universal Jurisdiction (Program in Law and Public Affairs 2001) <http://lapa.princeton.edu/publications.php>.Principle 1(4) specifically considers due process requirements founded on the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976), 999 UNTS 171, arts 14, 15, at 29.All International Criminal Tribunals mirror this, therefore any system of international criminal justice should be taken to require this also.
perspective.It focuses upon discovering the truth, reconstructing the narrative of a conflict or human rights affected society, and reempowering victims and victimized communities.
A number of different conceptions of the relationship between restorative and retributive justice have been advanced.One is that restorative justice operates on a fundamentally different level to international war crimes trials.While international criminal tribunals can be said to operate as a retributive/guilt-based justice model, restorative justice is designed to function on the level of establishing the truth and on reconciliation and healing. 38Under this approach, the two are 'mutually exclusive, incapable of happy coexistence'. 39nother view is that the two can, with institutional transformation, coexist in a transitional context-that there is also scope for restorative themes to be incorporated into the procedural framework of international trials. 40The problem with this attempt to marry the retributive with the restorative is that the forensic requirements of war crimes trials are in some respects manifestly incompatible with restorative approaches.
One such example of an attempt to integrate 'formal' and 'informal' approaches can be seen in Sierra Leone.Following that bloody conflict, involving numerous rebel groups and the displacement of nearly half of the population of the country, a UN-backed peace agreement was finally reached in 2002.This was preceded by the Lomé Peace Accords in 1999 which provided for the creation of a Truth and Reconciliation Commission, which had a legislative mandate to: create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone; … to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered. 41 2002, at the request of the Sierra Leone President, a Special Court was created to try those responsible for crimes committed during the conflict, independently of the Commission.The Sierra Leone Commission concluded in 2004, releasing its final report.It has been criticized as being a 'deeply flawed and problematic process' 42 and as being in conflict with the Special Court. 43This was for a variety of reasons, including the relationship between the Commission and the Court, internal organizational problems within the Commission and the cultural difficulty of encouraging public truth-telling. 44Others, including one of the Commission members, William Schabas, believe that the Sierra Leone model 'may help us to understand that post-conflict justice requires a sometimes complex mix of therapies, rather than a unique choice of a single approach from a menu of alternatives'. 45At any rate, while the Truth and Reconciliation model may well have benefits in a transitional environment, it seems that a cooperative or integrated approach with war crimes trials carries some difficulties.
An even less successful attempt to integrate 'formal' and 'informal' approaches to international criminal justice occurred in the former Yugoslavia, where a Truth and Reconciliation Commission was formed in 2001 to operate parallel to the ICTY.However, after facing considerable internal conflict, numerous withdrawals by key personnel, concerns over resources and the mandate of the commission, and little substantive progress, it ceased to exist in 2003-oddly, without any official statement or decree. 46aised about the frankness of disclosure by perpetrators and the satisfaction felt by victims, the Commission is broadly viewed as a successful use of restorative justice and was credited with assisting South Africa in the transition to full democracy. 52he value of Truth and Reconciliation Commissions has also been expressed from the perspective of storytelling as a therapy.The use of narrative to expose truth and correct false and damaging stories can have considerable value for individual victims and communities. 53ruth and Reconciliation Commissions are a global phenomenon and have been established in states including Argentina, Chile, El Salvador, Uganda, Germany, Zimbabwe, Guatemala and, more recently, Burundi and East Timor.They will no doubt continue to be relied upon as a mechanism of international criminal justice.Their effectiveness will probably much depend on the social context in which they are created and how they are designed to interact with juridical responses to crimes committed.

B. Community-based Responses to Mass Atrocity
Moving perhaps further towards the perimeter of international criminal justice is a range of community-focused programmes for transitioning societies.Alternative forms of justice such as localized courts are approaches that can 'more accurately reflect sociolegal norms of the places most immediately afflicted by mass atrocity'. 54n interesting example of this approach is the Gacaca courts used in post-genocide Rwanda.While the international response to the genocide came in the form of the International Criminal Tribunal for Rwanda (set up to try those responsible for the genocide) and national courts (which prosecuted others), the government also employed traditional justice methods.The decentralized nature of the Gacaca courts allowed greater engagement at a community level for victims.The courts were not permitted to try serious offenders, but rather heard cases over property and other more minor offences.From a practical perspective, the national The international lawyer's reflex is to sublimate other threads, or voices, in the myriad conceptions of international criminal justice. 60Part of this reflex is founded in the sense that international criminal law is equated to international criminal justice.However, while war crimes trials are a species of any criminal trial, they are also much more than this.This is a space in which other disciplines can help us understand what international criminal justice is more broadly.Other disciplinary perspectives-historical, political, sociological and victimological-are all worthy participants in the debate about what international criminal justice is.

A. Politics
Consider for a moment the relationship between politics and international criminal justice.Politics have been, and in mainstream international criminal law still are, considered something inherently undesirable.This perspective, as Gerry Simpson puts it, views the trial ideally as 'a place liberated from politics and the contamination politics threatens'. 61In fact, war crimes trials are infused with politics in a range of critical ways: in a practical sense, from their creation, implementation and ongoing support; in a conceptual sense, from the fact that all law is an expression of politics; and finally, in the sense that war crimes trials invariably mean different things to different people.Clearly, the creation of any of the ad hoc and hybrid criminal tribunals is a product of the political relationship between states.The creation of the International Criminal Court represents a major shift in international norms relating to the prosecution of international crimes. 62he same is true for Truth and Reconciliation Commissions and other ways of responding to mass atrocity.Indeed, one simply needs to take a step back and ask a simple question to see just how profound the role of politics is in international criminal justice.Why is there a court to try crimes in the former Yugoslavia, Rwanda and Sierra Leone but not in Somalia, Zimbabwe or Sri Lanka?Why is there a Security Council Resolution referring Sudan and Libya to the ICC but not Yemen or Gaza? 60 See e.g., Boas, above note 13, 4-arguing that international criminal trials are a forensic process and that extra-legal considerations are to be pushed aside (a position from which I now somewhat resile).Politics dictates expressions of international criminal justice and in doing so shapes our consciousness about where, why and how it applies.Of course, what we do only serves to highlight what we do not, but perhaps should, do.

B. Victimology
A critical sociological and psychological element of international criminal justice concerns the role and status of victims.This is an emergent area of research which raises difficult theoretical, methodological and conceptual questions.What constitutes victimhood, the role and significance of individual and collective victims, the experience of indirect victimization, access to justice and victim rights, must all be considered within the wider debates surrounding the normative evolution of international criminal justice.
Within this area, the line between victim and witness-and therefore between possible conflicting roles, participation and interests within proceedings-remains unclear. 63The appropriate boundaries for victim participation and its implications for the relationship between different expressions of international criminal justice remains a contested area in which the legitimate interests of victims needs to be considered in relation to the efficiency and fairness of the proceedings and the rights of the accused. 64hile many expressions of international criminal justice promote a certain type of justice, based on Anglo-Continental legal tradition, legal anthropology reveals a diversity in conceptions of justice: from the manner in which people, and more importantly victims, conceptualize rights, to their understanding of an individual's duties vis-à-vis ethnic or cultural groups and attitudes towards appropriate punishment. 65here victims' ideas of justice do not align with international legal regimes, the result is their exclusion from a legal political system. 66 requires a discussion of the diverging ideas of justice in the context of victimology. 67One (traditional, forensic) view of international criminal justice is that it is designed to be the 'end of impunity' not the 'end of suffering'. 68On this view, it is a system that punishes people 'for the fact that they have breached the law, not for the fact that they have inflicted trauma as perceived subjectively [by victims]'. 69Victims are not owed convictions, but society at large has a right to pursue a conviction. 70n the other hand, the endless stories of victims re-traumatized by the process of testifying in international trials, the further marginalization of victims from the trial process through the 'paperization' of trials and dissatisfaction with sentences, are all legitimate concerns that call for a revision of traditional common law perspectives of the victim in criminal justice.The ICC may have addressed the lack of victim rights by granting participation and compensation rights, but this process is yet to pass the true test of time. 71urthermore, complaints about the truth and reconciliation process and community-based models raise questions about how international criminal justice is responding to the critical needs and rights of victims and how it is being shaped by them.The future for the relationship between international criminal justice and victimology rests on finding a middle ground between community-based responses and a purely legalistic characterization of the purpose of internationalized justice.account for the millions of people who, having previously been considered to be mentally healthy members of society, come to partake in genocidal behaviour alongside these leaders. 76ituational approaches focus instead on the role of external social factors in the development of genocidal behaviour, including obedience to authority. 77Others have suggested that the concept of identity is central to the act of genocide.Moshman, for example, argues that genocide occurs as a result of four overlapping phases of extreme identity formation: dichotomization, dehumanization, destruction and denial. 78ichotomization refers to the way in which people classify themselves according to different dimensions (gender, religion, age, profession, etc.) and how in some instances instead of defining themselves according to many different dimensions, people may come to define themselves in one dimension, creating a simple 'us and them' mentality. 79The second phase, dehumanization, involves ranking one side of this dichotomy above the other, such that those deemed to be without a certain dimension are considered to be inferior, subhuman, even.The prime example of this phenomenon is the Holocaust, during which those of Jewish ancestry were deemed to be subhuman by those who subscribed to the Nazi ideology.Conceptualizing the other as subhuman allows for the cessation of any moral obligations towards that group, resulting in destructive behaviour toward those of 'inferior' status.Finally, in an attempt to align their moral identities, members of the 'superior' group partake in the process of denial, in which true acceptance of what has occurred is avoided.Each of the stages in Moshman's theory are thought to reinforce the other such that dehumanization increases the salience of dichotomization and involvement in destruction strengthens the ideas of dehumanization.Thus, the extreme development of identity that is based on a singular dimension can create the perception of a dichotomous society in which one group dominates over the other, often leading to violent and genocidal behaviour. 80xamined from these 'different' (non-legal) perspectives, psychology might be seen at once as a tool for 'treating' the consequences of mass atrocity, but also for understanding the 'why' and 'how' and thus 76 Blass, above note 72.Slobodan Miloševic ´, Saddam Hussein, Omar Al Bashir or Klaus Barbie?In any case, one person's Barbie might be another's Bush.But justice is not pure and therefore neither can international criminal justice be.It is a work in progress, driven by a mixture of moral values and pragmatic responses.
There are many different ways to skin the international criminal justice cat.Restorative and retributive justice models provide a range of options.Examining these from different disciplinary perspectives can only serve to amplify our understanding and improve our capacity to respond to mass atrocity.This has attempted to discover what international criminal justice is, but, truth be told, it means different things to different people at different times.The Mothers of Srebrenica will never be satisfied that justice has been done, even when Radovan Karadžic ´and Ratko Mladic ´are locked up for life.This is much like Arendt's account of the Eichmann trial-even his conviction and hanging were appallingly unsatisfactory.What we expect of international criminal justice is just as perplexing as trying to understand what it is; indeed, one invariably influences the other.
See, e.g., Prosecutor v Plavšic ´(Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, Case No IT-00-39&40/1S, 27 February 2003) [94].This case was followed in Prosecutor v Jokic (Sentencing Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber I, Case No IT-01-42/1-S, 18 March 2004), the Trial Chamber noting that 'the parties agree that Miodrag Jokic ´was instrumental in ensuring that a comprehensive ceasefire was agreed upon and implemented': at [90]; Prosecutor v Blagojevic ´(Judgement) (International Criminal Tribunal for the Former Yugoslavia, Appeals Chamber, Case No IT-02-60-A, 9 May 2007), the Chamber stating that the conduct of an accused that promotes reconciliation in the former Yugoslavia has been considered as a mitigating circumstance, at[330].
Gideon Boas et al, International Criminal Law Practitioner Library-Volume III-International Criminal Procedure (Cambridge University Press 2011); Boas, above note 13.

25
Georg Schwarzenberger, 'The Province of International Judicial Law' (1983) 21 Notre Dame International Law Journal 21, 25.Indeed, Schwarzenberger had maintained such a view since 1950.See generally Georg Schwarzenberger, 'The Problem of an International Criminal Law' (1950) 3 Current Legal Problems 263.26

27
Not only have the ad hoc and hybrid tribunals been created and supported, but the ICC has been the recipient of two Security Council referrals (despite three of the Council's permanent members not having ratified its Statute), including as recently as SC Resolution 1970 of February 26th 2011, referring the Libya situation.

52
See Sam Garkawe, 'The South African Truth and Reconciliation Commission: A Suitable Model to Enhance the Role and Rights of the Victims of Gross Violations of Human Rights?' (2003) 27 Melbourne University Law Review 334.53 See Teresa G Phelps, 'Narrative Capability: Telling Stories in the Search for Justice' in Severine Deneulin, Mathias Nebel and Nicholas Sagovsky (eds), Transforming Unjust Structures: The Capability Approach (Springer 2006) 1. 54 Mark A Drumbl, Atrocity, Punishment and International Law (Cambridge University Press 2007) 70.See also Kelsall, above note 6.
This 63 See Pascale Chifflet, 'The Role and Status of the Victim' in Gideon Boas and William A Schabas (eds), International Criminal Law Developments in the Case Law of the ICTY (Martinus Nijhoff 2003) 75.
'Us and Them: Identity and Genocide' (2007) 7 Identity: An International Journal of Theory and Research 115.79 Gordon McCormick, 'Terrorist Decision Making' (2003) 6 Annual Review of Political Science 473.
The Gacaca Courts, Post-Genocide Justice and Reconciliation in Rwanda: Justice Without Lawyers (Cambridge University Press 2010).
in reality, very little occurred on the international 8 Of course, all the post-Second World War tribunals were classic examples of victor's justice, even if the expression of it accorded with established principles of criminal justice.For a discussion of this aspect of the Nuremberg, Tokyo and other post-War trials, see Antonio Cassese, International Criminal Law (Oxford University Press 2003) 332-3; Cherif Bassiouni, Crimes against Humanity in International Criminal Law (Kluwer Law International 1999) 552-4; Timothy L H McCormack, 'Selective Reaction to Atrocity: War Crimes and the Development of International Criminal Law' (1997) 60 Albany Law Review 681, 717; Gerry J Simpson, 'Problems Confronting International Law and Policy on War Crimes and Crimes against Humanity' (1997) 60 Albany Law Review 801, 805-6; Timothy L H McCormack, 'From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime' in Timothy L H McCormack and Gerry J Simpson (eds), The Law of War Crimes: National and International Approaches (Martinus Nijhoff 1997) 31; Richard H Minear, Victor's Justice: The Tokyo War Crimes Trial (Princeton University Press 1973).

13 See Gideon Boas, The Miloševic ´Trial: Lessons for the Conduct of Complex International Criminal Proceedings (Cambridge University Press 2007
18 16 See e.g., V Gowlland-Debbas, 'Security Council Enforcement Action and Issues of State Responsibility' (1994) 43 International Criminal Law Quarterly 55; Gabriël H Oosthuizen, 'Playing Devil's Advocate: The United Nations Security Council is Unbound by Law' (1999) 12 Leiden Journal of International Law 549.17 sought by Iraqi victims against US President George H W Bush, Vice-President Dick Cheney and others for committing war crimes in the 1991 Gulf war, overt threats by US Secretaries of State Colin Powell and later Donald Rumsfeld (including the refusal to fund a new NATO headquarters in Belgium), led to a series of amendments brought by the Belgian Prime Minister that significantly emasculated the Belgian law, including the removal of the partie civile component and recognition of a wide range of immunities under international law.For a detailed account of these events, see Steven Ratner, 'Belgium's War Crimes Statute: A Postmortem' (2003) 97 American Journal of International Law 888.Gideon Boas, 'War Crimes Prosecutions in Australia and Other Commonwealth Countries: Some Observations' (2010) 21(2) Criminal Law Forum 313; Helen Durham and Michael Carrel, 'Lessons from the Past: Australia's Experience in War Crimes Prosecution and the Problem of the Applicable Legal Framework' (2006) 2 Asia-Pacific Yearbook of International Humanitarian Law 135; Aegis Trust, Strengthening UK Law on Genocide, War Crimes and Crimes against Humanity-House of Lords Briefing Note on Planned Amendments to the Coroners and Justice Bill, June 2009; Sharon A Williams, 'The Prosecution of War Criminals in Canada' in Timothy L H McCormack and Gerry J Simpson (eds), above note 8.
28 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment) [2002] ICJ Rep 3. 29 Following action 30 See generally, , 'Military Commissions: The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts' (2002) 96 American Society of International Law 320; Kenneth Anderson, 'The Military Tribunal Order: What to Do with Bin Laden and Al Qaeda Terrorists?A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base' (2002) 25 Harvard Journal of Law & Public Policy 591.
Human Rights Quarterly 496, 516.Glasius goes further, noting: 'Both secondary sources in Uganda and the DRC and primary research for this article in the CAR suggest that victims have a distinct and sometimes passionate interest in the doings of the Court.'