John Yoo, the former Bush Administration OLC lawyer and Berkeley law professor, has just published a Wall Street Journal review of David Scheffer’s memoir, All the Missing Souls. Scheffer was U.S. Ambassador at Large for War Crimes Issues and was heavily involved with the creation of the ad hoc tribunals in the 1990s as well as the Rome Statute Conference. (Chris Borgen also has commentary on the review here.)
Amongst other things, Yoo criticizes Scheffer for his naïve belief that international prosecutions will help stop ongoing atrocities or prevent future ones. The criticism is particularly stinging with regard to Rwanda, for which the Clinton Administration would not authorize an intervention, a decision President Clinton eventually apologized for in person during a trip to Africa after his presidency. Here’s Yoo’s argument:
One can only gape at Mr. Scheffer's account of his activities while anywhere from 500,000 to 900,000 Tutsis were slaughtered in Rwanda in 1994. Rather than press his colleagues at a National Security Council meeting for military intervention, or resign in protest, Mr. Scheffer says that he achieved a second-best result: American approval for a genocide investigation. “I wonder to this day,” he says, “whether I could have accomplished more at that meeting.”
I am generally in agreement with Yoo that it is naïve to expect international tribunals to stop or prevent atrocities, at least not in the obvious sense of deterrence. I do not believe that genocidal criminals are susceptible to the usual inducements, i.e. that possible imprisonment in The Hague is a significant factor in their decision-making process. This is a frequent complaint that I have with much international criminal law scholarship, although I might be something of an outlier in this respect.
What I find troubling about Yoo’s argument is that he implies that this skepticism about the deterrence capacity of international tribunals should entail skepticism about international tribunals themselves. But the one doesn’t follow from the other. That’s because international tribunals aren’t justified by deterrence as the consequentialist or utilitarian understands the concept. Rather, international tribunals are justified by retributivism, or the idea that international criminals ought to receive their just punishment, and that there is an inherent value to ending the impunity when no local jurisdiction is willing or able to prosecute them. For a retributivist, the consequences (like deterrence) do not matter. Just punishment provides its own rationale for the criminal process.
Of course, one might object that the Security Council’s creation of the ICTY and ICTR was premised on restoring international peace and security – an envisioned consequence to be sure – as understood by Chapter VII of the UN Charter. The same Chapter VII rationale also applies to binding referrals by the Security Council to the ICC.
However, restoring international peace and security is not the same thing as deterrence as a consequence. International peace and security can be promoted even if international criminals are not deterred by the prospect of a trial in The Hague. Rather, international peace and security is promoted when victims (or more properly, victim groups) believe that perpetrators will receive their just deserts at an international court; without this belief, victims might engage in reprisals and exact revenge at the point of a gun. The existence of an international criminal forum prevents this cycle from continuing, but it has nothing to do with deterrence.
So although I’m with Yoo about the naivety regarding the deterrence function of international courts, I think it is a logical mistake to then conclude that the program of international criminal justice is misguided. First, the tribunals might still promote peace and security. Second, even if they didn’t, the inherent value of retributivism justifies them at a normative level.