The power of international criminal courts: Strategic behavior and accountability networks

ABSTRACT

International criminal courts are often given mandates without the authority or resources to enforce those directives. Given this, how do they achieve their objectives? We argue that in the case of the International Criminal Tribunal for the former Yugoslavia (ICTY), the court strategically developed an accountability network comprised of governmental and nongovernmental actors, using its expertise and position to provide information and a framework of accountability. Simultaneously, it reached out to a range of actors to ensure that governments and international organizations would push Balkan states to cooperate with the ICTY, thereby amplifying the court's power. Utilizing correspondence data, we create a unique dataset that traces the development of this accountability network, demonstrating how this institution engaged networks to pursue its goals. In general, we demonstrate that, although institutions may lack compulsory power, they can engage in strategic behavior using networks to project their productive power.

Acknowledgments

We thank David Forsythe, Faten Ghosn, Courtney Hillebrecht, Katherine Hunt, Alice Kang, Nam Kim, Francisco Lopez-Bermudez, Mathew Morehouse, Amanda Murdie, Andrew Reiter, Thomas J. Volgy, and Page Wilson for their comments on previous drafts of this article.

Notes

1. We identify international criminal courts as those entities that can prosecute individuals for violations of international law (war crimes, crimes against humanity, genocide, etc.). These courts include courts or tribunals created solely by the UN (including the ICTY, the International Criminal Tribunal for Rwanda, etc.) as well as hybrid courts or tribunals that partner domestic and international entities (including the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, etc.).

2. Productive power is defined as “the constitution of all social subjects with various social powers through systems of knowledge and discursive practices of broad and general scope…[it] concerns discourse, the social processes and the systems of knowledge through which meaning is produced, fixed, lived, experienced, and transformed” (Barnett and Duvall 2005: 55).

3. Courts such as the ICTY are often identified as “transitional justice” institutions, since they are implemented in the context of transitions from periods of human rights abuses or civil war to more peaceful or democratic eras.

4. Security Council Resolution 827 of 1993, which was responsible for creating the ICTY, noted the UN's belief that the tribunal would end violations of humanitarian law and crimes against humanity (and thereby improve respect for human rights), establish accountability and restore and maintain peace.

5. This view was only adopted by those who perceived the ICTY as a viable institution; others see such courts as a threat to peace, democracy, and even international justice (Goldsmith 2003; Cobban 2006b).

6. Nodes, as defined in social-network analysis, are the independent elements of the social network. In our accountability network, nodes are either states or other political actors that are engaged by the ICTY.

7. Due to the fact that we are working only with ego-network data, we are unable to fully analyze the network as a structure that conditions the actions of its members, although we argue that it does indeed constrain network members. We place our emphasis here on the network-as-actor approach in order to investigate who the ICTY has incorporated into that network and how it has gone about doing this.

8. Del Ponte was the Chief Prosecutor of the ICTY from 1999–2008.

9. ICTY correspondence documentation is available through the ICTY's website (2016). Add International Criminal Tribunal for the former Yugoslavia. (2016) “Press.” Available: http://www.icty.org/en/press [21 May 2016].

10. Correspondence analysis has been utilized for the investigation of social networks in a variety of previous works; for more on this, see Wasserman and Faust (1994).

11. It is important to note that press releases documented specific activities initiated both by the court as well as by other network members. We have separated out those activities or messages initiated by the court from activities initiated by other network members so all figures displayed in the subsequent analysis are directional from the ICTY to the other nodes/members.

12. Arbour was the Chief Prosecutor of the ICTY and the ICTR from 1996–1999.

13. Supplementary Appendix B provides examples of these different types of pressure in terms of the specific language that was employed and identified in the press releases and briefings, and is available with the online appendix materials.

14. We thank an anonymous reviewer for this point about reputational costs.

15. Press releases were only consistently available from 1996–2010 at the time of initial coding, during the tenure of Louise Arbour, Carla Del Ponte, and a portion of the tenure of Serge Brammertz. Due to the fact that press releases were not available for the entirety of 1994, we omitted the period of August 1994 until September 1996 that coincided with the period of Richard Goldstone's service as chief prosecutor. This timeframe also does not fully encapsulate the period for Brammertz as Chief Prosecutor as he remains in that position presently.

16. Due to the large number of press releases that were targeted to the international community at large, we provide two separate visualizations—Figure 1a includes the international community at large and Figure 1b omits the international community.

17. We realize that one critique of this approach is that the number of communications may actually reflect not the strength of the relationship but the weakness of the ICTY in attaining its goals. However, given that the highest levels of correspondence (aside from those sent to the Yugoslav states) were directed at actors who actively cooperated with the court, it seems unlikely that more outreach is a reflection of this alternative dynamic.

18. In each figure, state nodes are circles, organization nodes are squares, security/enforcement nodes are triangles, official state representative nodes are pentagons, and other nonstate actor nodes are diamonds.

19. Comments by Arbour confirm this. See Louise Arbour, “The Crucial Years” and Arbour's quote in Klarin (2004, p. 551).

20. Rhea (2009) confirms the important role of the United States but also the UNSC, the European Union, and France to the ICTY, especially in its creation and the first few years of existence.

21. Kim's (2005) analysis of Balkan cooperation on war crime attributes the steady stream of individuals who finally made their way to The Hague to EU deadlines associated with integration as well as NATO and other Euro-integration processes.

22. Full data on intermediaries and their respective targets are available from the authors upon request. Table A3 lists the data on the use of the EU as an intermediary and is available with the online appendix materials.

23. We focus on the chief prosecutors due to the fact that these individuals and their respective offices are the most likely to guide and shape the methods of persuasion (or coercion) used by the ICTY. Tables A1 and A2, available with the online appendix materials, provide a comprehensive list of the targets and intermediaries used over the duration of this analysis and disaggregated according to the periods of each prosecutor's tenure.

24. It is also plausible that any patterns that exist are the result of idiosyncratic differences unique to each prosecutor. If this were the case, then we should presumably see no or few patterns that appear as significant across all of the prosecutors. Our findings are relatively consistent across actors demonstrating that, although there are certainly a few notable deviations (such as Brammertz's limited engagement of non-European major powers), the general patterns stipulated by our hypotheses are supported by the data.

25. Given that Del Ponte's tenure is nearly twice that of Arbour and Brammertz, this may not necessarily be an indication of systematic differences. Under Del Ponte's leadership, the ICTY sent approximately 940 messages (press releases and briefings) as opposed to less than 200 sent under Arbour and nearly 370 sent under Brammertz, indicating higher levels of engagement in both absolute and relative terms.

26. For intermediaries, the average number of contacts was six as opposed to three in the previous period. For targets, the average number of contacts was nearly 18 in contrast to six previously.

27. This holds only for the period up to and including 2010.

28. Although liberal institutionalists incorporate the concept of interdependence, it remains a directed relationship between two actors only, rather than accounting for a full social network.

29. Many books on the ICTY note the resistance of the Balkans and how it took numerous and often repetitive efforts of the ICTY to obtain the arrests, evidence, and cooperation that it did procure (Del Ponte and Sudetic 2009; Lamont 2010; Nettelfield 2010).

Additional information

Notes on contributors

Jennifer L. Miller

Jennifer L. Miller is an Instructor in the School of Criminology and Criminal Justice at the University of Nebraska-Omaha. Her research focuses on transitional justice, international criminal-justice institutions, and human rights. Dr. Miller's work has appeared in publications including Foreign Policy Analysis, Human Rights Review, International Interactions, and Science. Patrice C. McMahon is an Associate Professor at the University of Nebraska-Lincoln. Her book, The NGO Game: Nongovernmental Organizations in Peacebuilding in the Balkans and Beyond will be published by Cornell University Press and her book, American Exceptionalism Revisited: U.S. Foreign Policy, the Human Rights Record and World Order Revisited (coauthored with David Forsythe) is forthcoming by Routledge Press. McMahon is the author of Taming Ethnic Hatreds: Ethnic Cooperation and Transnational Networks in Eastern Europe (Syracuse University Press) and has been involved in five book projects. Her research has appeared in Foreign Affairs, Political Science Quarterly, Human Rights Quarterly, Democratization, and Ethnopolitics.