7
No Justice Without Peace?
International Criminal Law
and the Decision to Prosecute
Simon Chesterman

In a recent book on crimes against humanity, Geoffrey Robertson quotes a joke that did the rounds of foreign correspondents in Sarajevo during 1994: “When someone kills a man, he is put in prison. When someone kills 20 people, he is declared mentally insane. But when someone kills 20,000 people, he is invited to Geneva for peace negotiations. ” 1 The black humor captures a dilemma central to the project of international criminal law: to what extent should the larger goal of peace take precedence over the prosecution of individual justice?

Following the establishment of ad hoc tribunals for the former Yugoslavia and Rwanda in 1993 and 1994, and the adoption in 1998 of the Rome Statute of the International Criminal Court (ICC), much has been written on the history and the future of international criminal law. 2 In this chapter I focus on the specific questions of whether individual criminal responsibility should be pursued as part of the resolution to a conflict and the extent to which the international community can and should be involved in any such proceedings.

I begin with the legacy of the Nuremberg trials. Whether or not these proceedings are regarded as tainted by “victor's justice, ” they provided an unrealistic template for the development of international criminal law. In particular, the trials took place following unconditional surrender to an occupying power—as a result, amnesty for the Nazis was never seriously contemplated. Of primary interest here is the decision to pursue legal rather than military means at all; this was in large part due to the view that the desire for retribution had to be tempered by the need to deter similar atrocities in future.

I then turn to the modern experience of international criminal tribunals, focusing on the two ad hoc tribunals for the former Yugoslavia and Rwanda. The work of these tribunals—each created by the United Nations Security

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