Beyond Victor's Justice? The Challenge of Prosecuting the Winners at the International Criminal Tribunals for the Former Yugoslavia and Rwanda

TLDR

The concept of victor's justice, problematic at Nuremberg and Tokyo, remains relevant as the ICTY and ICTR, lacking police powers, rely on states that may withhold essential assistance to prosecute wartime atrocities. This article evaluates how the ICTY and ICTR address victor's justice and measures their success in holding victorious actors in the Balkan and Rwandan conflicts accountable. The study finds that state tactics can curtail tribunal effectiveness, while powerful international actors can either constrain or expand a state's capacity to undermine the tribunal, and that targeted strategies can enhance state cooperation.

Abstract

Abstract For human rights advocates, the notion of “victor's justice” has become increasingly distasteful in the decades since Nuremberg. At first glance, the victor's justice problem that plagued the Nuremberg and Tokyo tribunals appears to have been transcended by the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR) given their mandate to prosecute all serious violations of international humanitarian law. But the tribunals' lack of police powers give states wide latitude to withhold the vital assistance the tribunals need to investigate atrocities and bring suspects to trial. The aim of this article is to evaluate the tribunals' approach to the victor's justice question and assess the extent to which they have held the victorious protagonists in the Balkan and Rwandan conflicts accountable for atrocities committed during wartime. The article imparts two main lessons about the difficulties that international tribunals confront when attempting to prosecute war crimes suspects from the winning side of an armed conflict. First, tactics by states targeted by a tribunal can significantly limit a tribunal's ability to realize justice in a fair and even-handed manner. Second, tactics by powerful international actors in relation to a targeted state can significantly constrain or expand the space in which a targeted state can act to undermine a tribunal. In certain situations, the tribunals may increase the prospects of state cooperation by crafting effective strategies to subject the state's behavior to international scrutiny and condemnation.