In response to reports of atrocities in Bosnia, Kosovo, and Rwanda the international community established ad hoc international war crimes tribunals to investigate crimes and prosecute perpetrators.1 Successive efforts have been made to expand the atrocities regime by forming a permanent tribunal, the International Criminal Court (ICC). Proponents support international tribunals not only as a means of holding perpetrators of atrocities accountable but also as a mechanism of peace by establishing justice and promoting reconciliation in war-torn regions.
Historically, warfare has been viewed as consistent with the laws of nature. Hugo Grotius, in his seminal work De Jure Belli ac Pacis Libri Tres (The Law of War and Peace), provides vivid accounts of wartime brutality consistent with norms of the time, citing Hellenic, Roman, and Biblical texts. Moreover, though Grotius includes some limitations on what was permissible in war, they would certainly be considered barbaric by modern liberal sensibilities.
The actions of some of the Croats of western Herzogovina rivaled in barbarity those of Serb chieftains of eastern Bosnia, and what was done to the Muslims of Mostar by Croats was perhaps as bad as the Serb shelling of the mainly Muslim parts of Sarajevo.’’23 While documented atrocities demanded international humanitarian intervention, the political and strategic complexities involved provided an unappealing scenario for the international community.
The most pressing challenge the ICTY faces is apprehending and detaining defendants. At Nuremberg most surviving instigators of Hitler’s ‘‘final solution’’ were apprehended by the Allies and detained for trial. The ICTY began with no defendants in custody. The problem this presents is clear: ‘‘The ad hoc tribunal for former Yugoslavia has itself to arrange the capture of those it is to try
What lessons can be drawn from these initial developments in the atrocities regime? Realist factors have dominated the politics of war crimes adjudication, but the atrocities regime is in its infancy. To dismiss the efficacy of the atrocities regime at this stage is premature, and the evidence here suggests that its development is proceeding rapidly