1. Under the 1948 Genocide Convention, States parties assume the obligation to punish perpetrators of genocide, whether before national or international courts. Despite such undertakings, realpolitik thwarted criminal justice throughout the Cold War era and a culture of impunity prevailed. The failure to hold leaders like Pol Pot, Mengistu, and Idi Amin accountable sent the message that genocide was an acceptable instrument of power. In 1993, confronted with the horrors of “ethnic cleansing” in Europe, the Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) as a measure for the restoration of peace and security under Chapter VII of the UN Charter. In 1994, a similar International Criminal Tribunal for Rwanda (ICTR) was established after an extermination campaign that consumed almost 1 million lives. Unlike the Nuremberg and Tokyo tribunals, these ad hoc courts were not accompanied by the use of armed force to prevent on-going genocide. However, they represented an unprecedented international judicial enforcement of the prohibition against genocide. Accountability extended even to Heads of State such as the once untouchable Yugoslav President Slobodan Milosevic. The resulting transformation of the boundaries of power and legitimacy in international relations expedited the adoption of the Rome Statute for an International Criminal Court (ICC) in 1998 and its swift entry into force in July 2002. Once a revolutionary concept, accountability is increasingly part of the contemporary political mainstream, and an essential ingredient in post-conflict peace-building in contexts as diverse as Cambodia, Democratic Republic of Congo, East Timor, Sierra Leone, and Iraq. A hitherto entrenched culture of impunity is gradually giving way to an era of accountability.

2. An essential question underlying the emerging international criminal justice system is measuring the preventive effect of punishment on future atrocities. This is primarily a utilitarian consideration relating to criminological theories of deterrence, incapacitation, and rehabilitation, rather than retribution. Given the exceptional scale and gravity of genocide, it is tempting to opt for retributive justice as a means of expressing moral outrage and vindicating elementary humanitarian norms. The rituals of legal process are a particularly attractive substitute for genuine engagement through preventive diplomacy, armed intervention, or post-conflict peace-building. Furthermore, criminal justice can lead to a false closure by conveniently reducing the magnitude of genocide to the sanitized confines of legal process. After all, how can the ordinary rationales underlying criminal punishment in habitually lawful societies apply to the context of endemic mass violence? How can conduct that is widespread be categorized as deviance? For instance, deterrence assumes that perpetrators are rational calculators such that the credible threat of punishment tilts the cost-benefit calculus providing a disincentive against criminal conduct. Do such assumptions apply to the context of intense hatred and all-consuming violence that typifies genocide? Even broader concepts of “general prevention” assume that the socio-pedagogical influence of criminal punishment merely reinforces existing inhibitions against crime in a habitually lawful society. How would these assumptions relate to a society with an inverted morality, where killing members of the victim group is elevated to an expression of group solidarity and heroism? Will leaders that are put on trial simply become martyrs in the eyes of their constituencies? How can criminal elements be incapacitated when there are tnes of thousands of perpetrators? How can criminals be rehabilitated when society itself is characterized by profound moral disequilibrium?

3. International criminal justice makes utilitarian sense because genocide and other forms of mass violence is rarely, if ever, the result of spontaneous bloodlust. Theories of primordial hatred and “clash of civilizations” fail to appreciate the central role of political élites in consciously manipulating group identity as an instrument of political homogenization and absolute power. The “industry” of genocide requires deliberation, planning, incitement, and almost always requires the resources and apparatus of the State or some other form of elaborate organization. With the proliferation of weapons of mass destruction, smaller terrorist groups may be increasingly capable of committing mass murder. But even suicide bombing often involves a cost-benefit calculation by political elites in a broader context of seemingly fanatical violence. Thus, the credible threat of punishment may discourage resort to mass violence to the extent that the resulting illicit gains are not ratified by the international community. Once an “aberrant context” of habitual hatred and violence is instigated and legitimized, the prospect of deterring crimes among lower-ranking perpetrators in an escalating spiral of atrocities becomes increasingly untenable. This is why the primary focus of international criminal justice should be prevention of such contexts through deterrence of those in leadership positions. In an era of accountability, the message should be clear, namely that “crime does not pay.” This relates both to the indictment and prosecution of leaders for international crimes, and to denial of the proceeds of war-profiteering through effective repression of money-laundering and illicit economic activities. In post-conflict peace-building, the removal or incapacitation of leaders responsible for fomenting hatred and violence is especially important since they often have a vested interest in obstructing inter-group power-sharing and democratic institution-building. This is an important ingredient in post-conflict social rehabilitation and preventing the resumption of retaliatory violence. Even if short-term prevention is not feasible, international judicially sanctioned expressions of disapproval help instil subliminal inhibitions against genocide in the culture of Statecraft and international diplomacy. Thus, punishing genocide is not only morally compelling, but also an important pillar of international peace and security in an interdependent global society.

4. An effective system of international criminal justice has both global and local aspects. On the one hand, universal enforcement of international criminal law is essential both to credibility and perceptions of fairness. Superpower exceptionalism, even if purely symbolic, breeds cynicism and plays into the hands of destructive forces by politicizing justice. Universal ratification of the ICC Statute and the strengthening of the Court as the pivot of a patchwork of international, mixed, and national jurisdictions are vital to universal enforcement. However, preoccupation with this global systemic context must not lead to a self-contained élite industry that fails to connect with the grim reality of post-genocide societies. This relates both to victims, as well as perpetrators and bystanders. In order to undermine the popular base of demagogical leaders and thereby facilitate national reconciliation and the emergence of a democratic culture, those directly affected must ultimately reckon with their own past. This difficult objective can be facilitated but not supplanted through international assistance. Even if national courts are “unable” or “unwilling” to prosecute in the ICC’s complimentarity scheme, no effort should be spared to ensure that those directly affected have access to and assume a sense of ownership over the criminal justice process. Considerations of international neutrality, expertise, and security, should be balanced against the need to ensure that trials in the Hague or elsewhere are relevant and meaningful to traumatized people who are often in remote and impoverished regions of the world, without literacy, access to media, means of travel, or even basic cultural familiarity with modern criminal process. Holding at least part of ICC proceedings in such regions, ensuring an effective outreach campaign, and enlisting the participation of local staff and communities wherever possible, will significantly enhance the preventive impact of global justice through local empowerment and capacity-building.