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Enforcing justice : the influence of norms on the efficacy of international criminal tribunals Stankovic, Azurondel 2005

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Enforcing Justice: The Influence of Norms on the Efficacy of International Criminal Tribunals B Y A Z U R O N D E L S T A N K O V I C B . A . , The University Of British Columbia, 2003 A THESIS S U B M I T T E D I N P A R T I A L F U L F I L M E N T O F T H E R E Q U I R E M E N T S F O R T H E D E G R E E O F M A S T E R O F A R T S in T H E F A C U L T Y O F G R A D U A T E S T U D I E S (Political Science) T H E U N I V E R S I T Y O F B R I T I S H C O L U M B I A September, 2005 © Azurondel Stankovic, 2005 Abstract The increase in the creation of International Criminal Tribunals (ICTs) in recent years has spawned a growing literature regarding the use of such tribunals in situations of violent conflict. This literature is divided between proponents of the use of ICTs as a means to secure the resolution of conflict through the upholding norms of justice and holding the actors in a conflict accused of committing war crimes accountable for these actions, and sceptics who question the use of tribunals in the wake of the realities of violent conflict. However, despite the divide between the two sides, both adopt an argument that regards norms and interest as mutually exclusive independent variables. I argue that the tendency to separate norms and interest does not provide a full analysis of the functioning of ICTs, and adopting a constructivist approach in which norms and interest are seen as complementary w i l l provide a more complete understanding of the limited success achieved by such tribunals. Such a constructivist approach is applied to the case studies of the International Criminal Tribunal for the former Yugoslavia ( ICTY) and the Special Court for Sierra Leone (SCSL) , demonstrating how the larger normative context influences state action regarding implementing and enforcing ICTs, thus influencing a tribunal's ability to achieve success. These case studies reveal the contextual nature of the concept of state interest and the influence of norms that comprise this context. iii Table of Contents A B S T R A C T I I T A B L E O F C O N T E N T S H I L I S T O F A B B R E V I A T I O N S V A C K N O W L E D G E M E N T S V I I N T R O D U C T I O N 1 Proponents vs. Sceptics and the Constructivist Response 2 Structure of the Thesis 5 Case Studies: ICTY and the SCSL 6 C H A P T E R 1: A N A L Y S I N G T H E L A R G E R N O R M A T I V E C O N T E X T 9 D E B A T I N G T H E U S E O F INTERNATIONAL CRIMINAL T R I B U N A L S 9 The Proponent Literature 9 The Sceptic Literature 11 DEFINING SUCCESS • 13 A R G U M E N T : T H E R O L E OF N O R M S 18 The Normative Basis of Behaviour 19 The Larger Normative Context 23 S U M M A R Y 28 C H A P T E R 2: T H E I C T Y 3 0 T H E C O N F L I C T IN T H E F O R M E R Y U G O S L A V I A 31 UN and NATO Involvement 31 Actions undertaken by the ICTY 34 Extension into Kosovo 35 A C C O M M O D A T I O N vs. A C C O U N T A B I L I T Y 36 Proponent Arguments 37 The Sceptical Response 39 ASSESSING T H E SUCCESS O F T H E I C T Y 40 T H E L A R G E R N O R M A T I V E C O N T E X T : SITUATING T H E I C T Y 43 Norms and Self-interest 44 Norms and the Use of Force • 47 C H A P T E R 3: T H E S C S L S3 C O N F L I C T IN SIERRA L E O N E 54 The RUF Invasion 55 Negotiating Peace 58 The SCSL 61 T H E C O N T E S T E D R O L E O F TRANSITIONAL JUSTICE 62 The Approach of Accommodation 63 T H E S C S L A N D T H E I N F L U E N C E O F T H E L A R G E R N O R M A T I V E C O N T E X T 69 Tension between Accountability and State Interest 69 Giving Meaning to State Interest: The Larger Normative Context 72 i v C O N C L U S I O N 76 C O M P A R I N G T H E C A S E STUDIES 76 Similarities 76 Differences 78 Conclusions 78 B I B L I O G R A P H Y 81 List of Abbreviations A F R C Armed Forces Revolutionary Council T - ^ ™ Economic Community of West African States Cease-Fire Monitoring E C O M O G „ J Group E C O W A S Economic Community of West African States E O Executive Outcomes G o S L Government of Sierra Leone I C C International Criminal Court ICT(s) International Criminal Tribunal(s) I C T R International Criminal Tribunal for Rwanda I C T Y International Criminal Tribunal for the former Yugoslavia IFOR Implementation Force . K L A Kosovo Liberation Army N A T O North Atlantic Treaty Organisation N P F L National Patriotic Front of Liberia N P R C National Provisional Ruling Council P M C Private Military Company R U F Revolutionary United Front S C S L Special Court for Sierra Leone S L A Sierra Leone Army S L P P Sierra Leone People's Party U N United Nations U N A M S I L United Nations Mission in Sierra Leone U N H C R United Nations High Commissioner for Refugees U N O M S I L United Nations Observer Mission in Sierra Leone U N P R O F O R United Nations Protection Force U N S C United Nations Security Council v i Acknowledgements This work is the final version of a thesis submitted to the University of British Columbia ( U B C ) in Vancouver, B . C . , Canada, in partial fulfilment of the requirements for the degree of Masters of Arts in Political Science. I would like to acknowledge and thank Prof. Richard Price for his assistance in this project. 1 Introduction The end of World War II was supposed to herald a new momentum for justice and accountability in the aftermath of wars in which extrajudicial atrocities were committed. The Nuremberg and Tokyo Tribunals were intended to serve as models for institutions promoting norms of justice and accountability and the 1949 Geneva Conventions would form the framework for trying those that committed atrocities. Despite the optimism these actions aroused for advocates of international justice and accountability, the Nuremberg and Tokyo Tribunals also incited criticisms that these institutions undermined the concept of justice. The fundamental components that define the notion of justice were missing; components such as impartiality. The obvious bias in favour of the victors' of World War II led to the conclusion that, while these trials may have been successful in their efficiency, they were not the ideal model to represent international justice and accountability. However, even in light of the shortcomings of the Nuremberg and Tokyo Tribunals, many felt that a new era in international law was beginning. The pursuit of justice and accountability in the aftermath of violent conflict characterised by human rights abuses and atrocities gave way to the concept of transitional justice, in which justice figures prominently in the transition from violence to peace. Transitional justice encompasses three main elements. First, transitional justice refers to the methods adopted by societies that are transitioning from repressive rule or armed conflict to address past atrocities. Second, it also incorporates the mechanisms used by such a society to overcome social divisions or reconcile. Third, transitional justice looks to the construction of justice systems as a means to prevent the commission of future human rights atrocities.1 The creation of the Nuremberg and Tokyo Tribunals were not conceived of as instruments of transitional justice as such; however, the reasons for their creation, the punishment of perpetrators of atrocities, figures prominently in the aims of transitional justice and tribunals became adopted as an instrument to accomplish these aims. However, despite the optimism regarding justice and accountability in the aftermath of World War II, the next tribunal was ' This definition of transitional justice was taken from Charles T. C a l l , "Is Transitional Justice Really Just?," The Brown Journal of World Affairs X I , no. 1 (2004): 101. 2 not created until 1993, when the International Criminal Tribunal for the former Yugoslavia ( ICTY) was established. Even though the international community's commitment to international humanitarian law, justice, and accountability seemed to stall during the Cold War era, the notion of transitional justice continued to gain force. The concept of transitional justice is informed in part from insights from human psychology, whereby "individuals emerging from massive abuse and trauma develop appropriate mechanisms to confront and process that experience, facilitating closure rather than repression." 2 Adapting from the individualist focus of human psychology, transitional justice expands on this notion to include a similar concept for societal groups and nations. Just as individuals must reckon with past abuses in order to progress, so too must social groups or nations if they have experienced the perpetration of atrocities. Justice becomes an integral part of the transition of society from violence to peace because if the "victims of hideous atrocities... simply forget about them or expunge their feelings without some form of accounting, some semblance of justice, is to leave in place the seeds of future conflict." 3 Thus, instruments of justice and accountability such as International Criminal Tribunals (ICTs) become important mechanisms to promote justice. The importance of ICTs to transitional justice is reflected in their composition. ICTs such as the I C T Y and the Special Court for Sierra Leone (SCSL) are created as international tribunals to promote the integrity and impartiality of the tribunals and mitigate criticisms that they are merely mechanisms of victor's justice. Proponents vs. Sceptics and the Constructivist Response While proponents of transitional justice have touted the benefits this concept has to peace-building after the occurrence of conflict, the international community has apparently been reluctant to embrace the concept. The usual approach of the international community has been to curtail violent disputes through the dismissal of "any focus on past atrocities as an obstacle to stability and the resolution of conflict." 4 The recent proliferation of ICTs, however, seems to indicate that the perseverance of the proponents of transitional justice has 2 Neil J. Kritz, "Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights," Law and Contemporary Problems 59, no. 4 (1996): 127. 3 Ibid. 3 triumphed. Many proponents look to the efforts of national courts to assert jurisdiction over Augusto Pinochet, the former Chilean dictator, as the advent of the recognition of the importance of transitional justice. 5 The creation of ad hoc tribunals to address conflicts in the former Yugoslavia, Rwanda, East Timor, Kosovo, and Cambodia also signify the emerging acceptance of transitional justice, as does the creation of the International Criminal Court. These developments indicate that "there may be an international doctrine gradually emerging which holds that, at least in the aftermath of widespread atrocities, justice is a necessary element of any stable peace."6 Despite the acceptance of emerging norms of justice and accountability, proponents are dismayed by the apparent lack of success ICTs have experienced. They note how tribunals have been successfully established, but have not been able to receive the proper enforcement from the international community, undermining the functioning of the tribunals. The reluctance to enforce the tribunals has resulted in the inability for tribunals to try important actors who have committed atrocities, and thus, have had difficulty in promoting and facilitating a meaningful end to violent conflict. The outcome of the implementation of ICTs has led proponents to acknowledge that the "human rights arena is defined by a constant tension between the attraction of realpolitik and the demand for accountability." This assessment entails that, even though the international community may be motivated to create tribunals out of a sense of obligation to address human rights atrocities, the difficulties of doing so and the appeal of realpolitik inhibits the functioning of these tribunals. In this situation, realpolitik becomes characterised by the interest of states influencing the implementation of ICTs. The implication is that, because upholding norms of justice and accountability is a difficult and intensive process that does not involve state interest but a commitment to ethical behaviour, states are more likely to defect to actions that are more conducive to state interest. For example, in order to implement the I C T Y , the states involved in its creation would have had to engage in the conflict in order to enforce the tribunal. The 4 Ibid.: 128. 5 Michae l P. Scharf, "Foreword: The Role of Justice in Bui ld ing Peace," Case Western Reserve Journal of International Law 35, no. 2 (2003): 153. 6 Kr i t z , "Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violat ions of Human Rights," 128. 7 M . Cherif Bassiouni, "Justice and Peace: The Importance of Choosing Accountability over Realpolitik," Case Western Reserve Journal of International Law 35, no. 2 (2003): 191. 4 consequences of doing so were unappealing to these states, so they were unwilling to enforce the tribunal. It is these political realities of violent conflict that sceptics cite to suggest that those engaged in conflict resolution should look to mechanisms conducive to pragmatic bargaining. 8 These mechanisms wi l l usually include amnesty provisions, thus countering the literature advocating the benefits of transitional justice. To justify the use of pragmatic bargaining, sceptics suggest that an approach based on adherence to norms of justice and accountability w i l l only work i f the dominant political coalition within the state in which the conflict occurred accept and adhere to these norms. 9 The support of the dominant coalition is necessary to mitigate the occurrence of retaliation from those who have been accused of war crimes. If these groups remain strong, then the consequences, implying increased violence, should be enough to mitigate an attempt to create a tribunal. The normative approach of creating ICTs can only be successful if there is substantial enforcement such that belligerents in a conflict cannot instigate violent backlash against the tribunal. In the literature that addresses transitional justice and the use of ICTs as an instrument of the concept both proponents and sceptics separate norms from interest. The proponent literature values norms of justice and accountability and emphasises the need for states to recognise and act to uphold this value. The sceptic literature, however, recognises the existence of the norms of justice and accountability, but denies that their value should mitigate action that reflects state interests. Thus, according to the proponent account, norms ought to become a primary reason for action, while in the sceptic account, state interest should be the main determinant of action. However, one of the problems that arises from the separation of norms and interest in the literature is that the interest of the actors involved in both conflict resolution and the conflict itself is assumed, resulting in a lack of analysis of the concept of self-interest. Both proponents of transitional justice and sceptics suggest that norms often run counter to interest, resulting in the dilemma of the inability for ICTs to function with much success. The separation of norms and interests, however, precludes the possibility that norms and Jack Snyder and Leslie Vinjamuri , "Trials and Errors: Principle and Pragmatism in Strategies of International Justice," International Security 28, no. 3 (2003/4): 6. 9 Ibid.: 13. 5 interest can become linked. I argue instead that analysing how norms can help to define interest w i l l provide a more complete understanding of the limited success of ICTs overlooked in the existing literature. In order to establish that norms and interest are linked, a constructivist approach, in which norms constitute actor identity and therefore interest, w i l l provide the basis of my argument. This approach does not deny the important observation made by both proponents and sceptics that norms of justice and accountability counter state interest. Rather, this thesis wi l l investigate the influence of norms of justice and accountability have in the wake of a larger normative context in which state identity and interest is constituted. That is, I contend that part of the failure of ICTs is best understood as less a matter of interests trumping norms and more one set of norms - and the resulting definitions of state interests - prevailing over another. Structure of the Thesis In chapter two, I provide a more detailed description of my theoretical argument. First, I outline the literature pertaining to both proponents of the use of ICTs as a mechanism for transitional justice and those sceptical of the use of ICTs generally. From this description of the literature, the competing forces of norms and ethics becomes more apparent. Second, I emphasise the inadequacies of the explanations provided in the proponent and sceptic literature, and address the need of a constructivist approach in order to provide a more complete understanding of the functioning of ICTs that is missing from the existing literature. A t the foundation of constructivist thought is the role of ideas. Constructivists note how actor identity and interests are a result of ideas rather than of material factors. I emphasise the contributions of constructivist theory to understanding the nature and the constitution of state identity and how this influences conceptions of state interest. I note the differentiation between systemic and holistic constructivism, and demonstrate the importance of incorporating both domestic and international factors in the process of state identity construction and how these factors influences the conceptualisation of state interest. I am then able to also outline the how the construction of state identity and interest affects the implementation of ICTs. 6 Third, from the examination of the construction of state interest and identity, I identify the role of norms in this process. Because state identity is constructed through social processes of international interaction, as well as domestic factors, norms come to help constitute this identity. However, norms exist in an interdependent hierarchy, whereby the success and endurance of emerging norms is dependent on how they fit into this hierarchy. I refer to the interdependent normative hierarchy as the larger normative context, which is comprised of well established norms. For the purposes of this study, the norms that form a part of the larger normative context that are of particular interest are norms regarding state sovereignty and intervention. It is the influence of the larger normative context, integral to informing state identity, interest, and action, that guides adherence to emerging norms of justice and accountability. Therefore, the key to a complete understanding of the failures and achievements of ICTs resides in the examining how the larger normative context influences the functioning of tribunals. Case Studies: ICTY and the SCSL In chapters three and four, I present the case studies of the I C T Y and the S C S L to substantiate my argument. These case studies provide important insight into the influence of implications of the relationship between norms and interest, and of the larger normative context on the functioning of institutions such as ICTs. For the case of the I C T Y , I investigate how norms influenced its implementation; from seeming initial reluctance to the indictment of Slobodan Milosevic in 1999. The war in the former Yugoslavia began in 1991 and I C T Y was established in 1993 in response to findings of a commission created in 1992 to gather evidence of war crimes. From its inception, the I C T Y has been characterised by an apparent lack of political w i l l . A prosecutor for the tribunal was not established until eighteen months after it was created. The indictments made by the I C T Y following its creation were of less important figures in the war. Indictments of more prominent people did not occur until 1995, when Ratko Mladic and Radovan Karadzic were indicted for genocide and crimes against humanity. Since there was a lack state wi l l to commit resources to the I C T Y , it seemed as though the tribunal was created as a way to address a moral obligation to become involved in 7 the situation in the former Yugoslavia without much effort. 1 0 From the start, many states were not wil l ing to commit the resources necessary to ensure the full development and operation of the I C T Y . According to Gary Jonathan Bass, there were at least two main obstacles to the full development of the I C T Y . 1 1 The first regards an unwillingness for states such as the United States, Britain, and France to sacrifice their own troops in a conflict that they were not directly involved in. The second obstacle focuses on the negotiation process, where diplomats were reluctant to support the I C T Y for fear that they could not negotiate a peace i f key figures were indicted for war crimes. In the literature, this is where the analysis of the situation stops. According to these accounts, the I C T Y was not set up for success because it was plagued by a lack of political w i l l from its inception. What I intend to establish is that states were motivated by the norm of justice in creating the I C T Y , but then were stalled by the influence of norms of state sovereignty and military intervention. In Sierra Leone, the special court was established through an agreement between the United Nations (UN) and the government of Sierra Leone after the implementation of a peace agreement that included a provision of blanket amnesty for perpetrators of human rights abuses. Thus, the creation of the S C S L is very different to that of the I C T Y . The S C S L is also a hybrid court, which entails that domestic actors are involved in the tribunal and its actions. The peace agreement intended to end the conflict was signed in Lome in 1999. According to the Lome Accord, the leader of the Revolutionary United Front (RUF) , the main rebel group involved in the c iv i l war, was also given a position in government that entailed control of the natural resources in Sierra Leone. This should have been an important incentive for Foday Sankoh, the leader of the R U F , to facilitate sustained peace because Sierra Leone is rich in diamonds, as argued by Snyder and Vinjamuri. However, the peace agreement did not result in the cessation of violent conflict. The failure to end the conflict, along with the arrest of Sankoh, prompted the government of Sierra Leone to appeal to the U N to help create a tribunal to try perpetrators of human rights abuses. Thus, the Special Court of Sierra Leone was established in 2000. Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton Studies in International History and Politics. (Princeton, N . J . : Princeton University Press, 2000), 207. 1 1 Ibid., 215. 8 The case of Sierra Leone is interesting because the peace agreement that seemed to have followed the approach of pragmatic bargaining did not ensure the creation of sustained peace. It is also interesting that a tribunal was not created until the government of Sierra Leone appealed for one. I wi l l investigate the process of establishing the Special Court in Sierra Leone, identifying why it was established in 2000 and not before, and how the competing norms identified above influenced this process. 9 Chapter 1: Analysing the Larger Normative Context The Nuremburg Trials at the end of World War II established the precedent of constructing tribunals to punish the perpetrators of mass human rights violations committed during a time of war. While the Nuremburg trials may be considered successful due to the efficiency in which the suspects were brought to trial, the nature of the trials do not provide a desirable template for transitional justice. The trials are characterised as victor's justice, with the focus on the commission of atrocities by the A x i s powers, while any atrocities committed by the All ies were ignored. Thus, these trials came to be seen as a method employed by the victors to punish the vanquished. 1 However, the concept of transitional justice entails the creation of an enduring peace after violent conflict through the creation of impartial and fair trials. In situations of conflict resolution and post-conflict societal reconciliation, the main goal is to uphold the "the issue of due process and the integrity of the court structure." It is in this tradition that other tribunals and hybrid courts, such as the International Criminal Tribunal for Yugoslavia ( ICTY) , the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone, among others, have been created to address grave atrocities committed by state leaders and other actors. The increased establishment of ICTs in recent years has provoked a number of responses to the propriety of using such institutions in the context of conflict resolution. The literature provides two divergent perceptions of ICTs. Advocates of ICTs posit that they are fundamental to the construction of sustained peace, while the sceptics believe that ICTs actually inhibit the ability to establish peace. Debating the Use of International Criminal Tribunals The Proponent Literature Proponents of the use of ICTs cite the propensity of tribunals to facilitate the creation of sustained peace by providing a mechanism for societal reconciliation and to inhibit recourse to violent conflict. This is achieved through a process of the development of peace that involves both the violators of human rights and the victims. Advocates of transitional 1 Ibid., 8. 2 David Scheffer, "Arresting War Criminals: Miss ion Creep or Miss ion Impossible?," Case Western Reserve Journal ofInternational Law 35, no. 2 (2003): 321. 10 justice "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." 3 This literature identifies four main methods that ICTs provide to facilitate conflict resolution and sustained peace. First, the notion of accountability entails that perpetrators are held accountable for their actions, which provides the victims of war crimes a way to address their grievances without resorting to violent action often associated with vengeance. A n important aspect of accountability is the notion of individual accountability which assigns blame for atrocities to individual actors rather than a whole societal group, such as ethnic or religious groups. Scholars believe that blaming individuals w i l l deter future violence between such societal groups. Second, the concept of deterrence, which is reinforced by the logic of accountability, constitutes an aspect of how ICTs contribute to building a culture of peace. If those who commit war crimes or human rights abuses are held accountable, then this might deter others from committing atrocities. The third contribution to establishing sustained peace made by ICTs involves the role of memory in conflict resolution. Proponents of ICTs widely believe that these institutions facilitate peace because of its contributions to the memory of what occurred. The trials that occur in ICTs provide a "public forum for the judicial confirmation of the facts," 4 which establishes the truth about atrocities committed. Because there is a public record of events, it becomes more difficult for others to manipulate what occurred or even deny it outright. The logic behind providing a memory suggests that this is an important aspect in recovering from atrocities in a way that promotes progress away from violence, instead of recourse to it. These three mechanisms of ICTs are integral components of the fourth contribution tribunals make in sustaining peace. Many scholars believe that ICTs provide what Nei l J. Kri tz calls a "sense of justice and catharsis."5 Martha Minow suggests that ICTs are a useful mechanism to build peace because tribunals help create a method of conflict resolution that bridges forgiveness and vengeance.6 Forgiveness, according to Minow, is a common 3 Christopher Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," International Organization 55, no. 3 (2001): 656. 4 Kr i t z , "Coming to Terms with Atrocities: A Review of Accountability Mechanisms for Mass Violat ions of Human Rights," 128. 5 Ibid. 6 Martha M i n o w , Between Vengeance and Forgiveness: Facing History after Genocide and Mass Violence (Boston: Beacon Press, 1998), 18. 11 response to human rights abuses that is undesirable because it is insulting to the victims of human rights abuses since it tends to diminish the harms they have suffered. Vengeance is another common response that is not ideal because it often leads to further violence. The role of ICTs thus becomes useful in providing a method to address the needs of victims. Within the literature advocating the benefits of transitional justice, proponents provide a normative explanation for the need to pursue and uphold concepts of justice and accountability. Norms of justice and accountability become integral to the peace-building process because of the belief that conflict resolution can only be secured through the promotion of these norms. The importance of the norms of justice and accountability is constructed through adherence to this idea of conflict resolution. Gary Jonathan Bass determines that the motivation to create ICTs stems from the "grip of a principled idea;" that decision makers "believe that it is right for war criminals to be put on trial ." 7 Indeed, there are good reasons put forth by proponents to suggest why ICTs are an important element of peace-building, such as the need to address atrocities in such a way as to mitigate both the dismissal and ignorance of past atrocities, as well as vengeance in the wake of the commission of atrocities. However, these reasons reflect the embedded ideas and conceptions of justice, particularly transitional justice. States do not pursue the creation and implementation of tribunals for strategic, self-interested reasons, but because of their acceptance of, and their adherence to, norms of justice and accountability. The Sceptic Literature Sceptics dismiss the benefits put forth by proponents by focussing on the tendency of ICTs to promote victors' justice, a label that characterises the Nuremburg Trials, as well as problems in the structure of these institutions.8 The sceptics believe that such problems inhibit the ability of ICTs to carry out the task of establishing sustained peace and also the ability to deter future crimes against humanity. The notion of victors' justice involves the belief that trials are a means of vengeance directed by one group, the victors, to the other losing group. These trials are often perceived as unfair by the losing group and become both 7 Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 7. 8 C a l l , "Is Transitional Justice Really Just?," 102. 12 a means of vengeance for the victorious group and a source of grievance for the losing group, and thus facilitate inter-group conflict rather than resolving it. Another fundamental problem that sceptics identify in ICTs is the possibility of backlash from the warring factions in the society in which the conflict occurred. The notion of backlash is what informs the claims of such sceptics as Jack Snyder and Leslie Vinjamuri that tribunals are strategically disadvantageous mechanisms to use for conflict resolution. 9 This belief is predicated on the perception that perpetrators of atrocities are likely to resort to increased violence if tribunals are established to try them for crimes they have committed. Inherent in this perception is the belief that actors are unwilling to stop violence unless they have the incentive to do so, and the threat of standing trial for crimes they have allegedly committed is hardly an incentive. Furthermore, ICTs have failed in deterring the further atrocities from being committed and do not facilitate the establishment of a durable peace. 1 0 Snyder and Vinjamuri offer an explanation that involves competing logics of behaviour to demonstrate the ineffectiveness of ICTs. According to these authors, the creation of ICTs is motivated by a logic of appropriateness.11 This notion is often found in constructivist literature on the role of norms in international relations. According to the logic of appropriateness, actors behave in accordance to appropriate action. People behave as they ought to behave according to prevailing norms. Thus ICTs are established because norms of justice, accountability, and human rights dictate that this is an appropriate reaction to war crimes. However, Snyder and Vinjamuri purport that the process of conflict resolution is i l l -suited to the logic of appropriateness approach. Instead, the authors advocate that the logic 12 of consequences prevail when attempting to resolve violent conflict. The logic of consequences that Snyder and Vinjamuri identify as the appropriate method for resolving violent conflict entails that actors are influenced by achieving certain 13 goals and are less concerned with the methods used in achieving these goals. According to this belief, the establishment of tribunals should be avoided when human rights violators Snyder and Vinjamuri , "Trials and Errors: Principle and Pragmatism in Strategies of International Justice," 13. 1 0 Ibid.: 20. 1 1 Ibid.: 10. 1 2 Ibid.: 7. 1 3 Ibid. 13 remain powerful enough to instigate a violent response to such efforts. 1 4 Since the objective is to secure peace, creating a tribunal counters this goal if it w i l l contribute to continued or increased violence and atrocities. Inherent in the reasoning that informs the arguments made by Snyder and Vinjamuri are two main beliefs about the nature of conflict resolution. First, in order to secure the cessation of violence, one must bargain with the powerful actors in the conflict. The second assumption focuses on the nature of the bargaining that should take place. Bargaining should be done in a pragmatic way, offering positive incentives to induce powerful actors involved in the conflict to stop committing atrocities, and violence altogether. Snyder and Vinjamuri assert that tribunals mitigate against this process of bargaining and that offering incentives such as amnesty is much more conducive to facilitating peace. The belief that the strategic and domestic political interests of powerful states influence the implementation of tribunals is at the heart of sceptic's view of ICTs. While proponents look to states' reluctance to sacrifice their own troops to enforce an ICT as a fundamental shortcoming, sceptics believe this to be the primary reason why ICTs are not an appropriate response to peace-building. Furthermore, "the prosecution of perpetrators of atrocities... risks causing more atrocities than it would prevent." 1 5 Thus, not only is it unlikely that states wi l l risk their own soldiers to pursue war criminals, but such a policy is also wholly unsuitable in a situation of peace-building because of the consequences, such as risking more atrocities. This argument infers that norm-driven enterprises such as the creation of ICTs would be unsuccessful because they would not coincide with the political realities presented by violent conflict. Inherent in this belief is the notion that norms and interest, and by corollary, ideas and material interest, are independent variables that are inherently discrete entities. When norms do not coincide with state interest, subsequent normative prescriptions become untenable. Defining Success The literature identified above does not offer an explicit definition of what success should be for ICTs. Inherent in the arguments of proponents is a notion of success that 1 4 Ibid.: 13. 1 5 Ibid.: 5. 14 entails how well a tribunal has contributed to post-conflict societal reconciliation. The better a society reconciles its violent past and progresses to a more harmonious existence, the more successful the tribunal. Proponents of ICTs have differing views about how successful tribunals have been. Many suggest that tribunals have had limited success in indicting and trying suspects, which influences a tribunal's success in contributing to post-conflict societal reconstruction. 1 6 Advocates credit the lack of political w i l l to reinforce tribunals as the reason for a lack of success. As Bass argues, tribunals such as the I C T Y are "built to flounder."17 Proponents especially note how state leaders w i l l adhere to the rhetoric of justice and accountability in creating tribunals, but then fail to provide them with adequate 18 resources, providing a "politically inexpensive" way of dealing with humanitarian crises. In addition to this, states are unwilling to enforce indictments or engage in arrests which are necessary to enforce the tribunals. B y identifying the tendency of states to only commit superficially to norms and justice and accountability, proponents of ICTs determine that state interests influence the ability of states to fully commit to these norms. Rather than demonstrating their full commitment to norms of justice and accountability, states defect to an approach of accommodation that engages the actors in the conflict as integral to the peace process, instead of holding them accountable. The approach of accommodation is derived from Will iams and Taft's notion of coercive appeasement, in which "politically and militarily powerful third-party states or peace builders... seek to resolve conflict by accommodating the primary interests of a rogue regime despite the regime's use of force and commission of atrocities to achieve its objectives." 1 9 The approach of accommodation is initiated when "individuals responsible for war crimes are embraced by the international community as 'partners in peace' and essential to the peace process." 2 0 The logic behind the approach of accommodation is that, through accommodating the interests and objectives of the 1 6 Paul R. Wi l l i ams and Patricia Taft, "The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement?," Case Western Reserve Journal of International Law 35, no. 2 (2003): 227. 1 7 Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 207. 1 8 Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 665. 1 9 Wi l l i ams and Taft, "The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement?," 221. 2 0 Michae l P. Scharf and Paul R. Wil l iams, "The Functions of Justice and Anti-Justice in the Peace-Building Process," Case Western Reserve Journal of International Law 35, no. 2 (2003): 169. 15 belligerents in the conflict, these belligerents wi l l no longer engage in the conflict. Advocates of the use of ICTs emphasise that accommodating the interests of belligerents w i l l affect the possibility of enduring peace and purport that the approach of accommodation fundamentally undermines the success of ICTs. Sceptics also implicitly allude to a measure of success, rather than explicitly identify what this should be. According to the literature, sceptics suggest that a measure of success must include how well a tribunal deters further atrocities and crimes, as well as how well it contributes to the cessation of conflict. 2 2 According to sceptics, tribunals have been largely unsuccessful because of failures to deter further atrocities and they are ill-suited to conflict resolution. They note how the I C T Y failed to deter atrocities from being committed 23 in the duration of the conflict in the former Yugoslavia, most notably at Srebrenica. These notions of success contribute to the problem of determining the success of ICTs because they emphasise different aspects of the tribunals. Proponents largely consider the effects of tribunals once conflict has ceased, and sceptics consider the effects of tribunals on the conflict itself. Because of these differences, tribunals may appear to be complete failures in some instances and largely successful in others. However, considering all of these measures of success, it is fair to determine that tribunals have experienced limited success. In the former Yugoslavia, for example, the tribunal was initially not able to indict high level suspects, such as Slobodan Milosevic, yet such indictments came years after the I C T Y was established. While such indictments can be considered successes for the tribunal, it has had less success in contributing to reconciliation, and as noted above, was not very successful in deterring further atrocities. In reviewing the literature, a dichotomy of appropriate responses to human rights abuses emerges. One side advocates that ICTs are really the only option available to help create a sustained culture of peace in a society that has experienced violent conflict characterised by human rights abuses. Bass's observation that states create ICTs because of the principled belief that war criminal should be tried for their crimes permeates the literature advocating the use of ICTs. The international norms that motivate the creation of ICTs are 2 1 Ibid.: 179. 2 2 Snyder and Vinjamuri , "Trials and Errors: Principle and Pragmatism in Strategies of International Justice," 5. 2 3 Ibid.: 20. 16 also fundamental to its success in facilitating sustainable peace, as international actors attempt to convince those in another state, where conflict occurred, that legalism is the right way to deal with war criminals and the most beneficial means of conflict resolution. This becomes fundamental for providing legitimacy for the ICT. The other side believes that pragmatic bargaining is the only way to convince actors to stop the violence. They do not dispute the norms that motivate the creation of ICTs, but take issue with the propriety of following these norms in situations of securing peace during violent conflict. Inherent in this argument is the belief that norms can be abandoned in situations that should be characterised by "realpolitik." A s M . Cherif Bassiouni states, there is a choice between accountability or realpolitik. 2 4 The notion of realpolitik is integral to realist and neorealist theories. These theories privilege the role of interest and power in motivating actor, primarily state, behaviour. While ideas factor into these theories, they do so epiphenomenally, with interest and power measured in material terms. While Snyder and Vinjamuri do not delve into neorealist theory in their argument, they do adopt an approach that relegates the role of ideas to the periphery, as evidenced by their belief that norms are one choice among many, but not a very good choice, in order to convince other actors to stop instigating violent conflict. They also believe that the norms motivating the creation of ICTs are ill-suited to ending violent conflict, and that sometimes norm-driven behaviour, what they refer to as the logic of appropriateness, is not always appropriate in the given situation. Thus, they infer that actors can escape norm-driven behaviour when it is their best interest to do so. However, there seems to be something missing in this assessment. If actors must choose between accountability or realpolitik, then why do state leaders advocate establishing tribunals at all? A problem within the literature is that neither proponents nor sceptics identify how norms influence behaviour. Both the proponents and the sceptics suggest that the norms of justice, accountability, and human rights that inform the creation of ICTs can be easily disregarded in favour of a more pragmatic or "realistic" approach. Proponents believe that international actors adhere superficially to these norms, that creating ICTs is an easy way to address conflicts that they are reluctant to become involved in, but believe that they must Bassiouni, "Justice and Peace: The Importance of Choosing Accountability over Realpolitik." 17 do something. Although neither side denies that norms are involved in the creation and functioning of ICTs, they do not focus specifically on the relationship between norms and behaviour in international relations. This relationship is an important aspect in determining the reasons for the limited success experienced by ICTs. The rationalist response provided by Snyder and Vinjamuri that states should adopt a pragmatic approach conducive to the political realities of a situation results in the separation of norms and interest, as noted above. Furthermore, because of the ethical nature of the norms of justice and accountability, to pursue these norms w i l l not reflect the logic of behaviour required in conflict resolution. This argument illustrates the resulting dichotomy between egoism and altruism in rationalist theories. If an actor must act in their own interest, and thus become an egoist actor, this actor cannot act according to the influence of altruistic factors because such action entails some sacrifice by the egoistic actor. Therefore, altruistic behaviour is rarely adopted because this conceptualisation of an egoist actor often refutes the possibility of acting altruistically. Ward Thomas demonstrates that it is not necessary to conceive of ethics and interest as separate logics of behaviour. The key to bridging the divide between self-interest and ethics is the notion of collective utility, or the "common good." 2 5 The concept of collective utility entails that actors can act in ways that w i l l benefit the common whole of which the actor is a part, even i f this action may sacrifice some of the actor's individual utility. Eventually, however, this action may benefit the actor. Thus, action conceived in this way suggests that even altruistic behaviour can be ethical as well as in the actor's interest, suggesting that ethics need not be divorced from interest.2 6 A n important corollary of this notion is that norms and interest should not be automatically separated and that action that appears to be motivated by interest does not necessarily exclude the influence of norms. A constructivist approach, in which norms become an integral aspect of constituting identity and giving meaning to interest, serves to demonstrate the possible complementarity.between norms and interest. Therefore, the fundamental contribution of a constructivist approach to analysing the creation and Ward Thomas, The Ethics of Destruction: Norms and Force in International Relations, Cornell Studies in Security Affairs. (Ithaca, N . Y . : Cornel l University Press, 2001), 14. 2 6 Ibid., 15. 18 implementation of ICTs is to determine how the normative basis of interest affects such tribunals, an aspect that has been overlooked in the literature. Argument: The Role of Norms In the case of ICTs, instead of a straightforward causal explanation of norms of accountability, justice, and human rights influencing the creation of ICTs, it seems as though other norms also exert influence. In this thesis, I w i l l argue that various norms guide the behaviour of international actors promoting international norms that influence the creation and operation of ICTs in such a way that constrains the diffusion of the norms of accountability, justice, and human rights to domestic society. The process of norm diffusion may not simply be a matter promoting certain norms in a domestic context; in certain circumstances, a multitude of norms are involved in the process. How these norms are prioritised and become involved in and influence this process provides an explanation for the limited success that many tribunals have experienced. While international actors are influenced by norms of justice, accountability, and human rights in creating ICTs, they are also influenced by norms of sovereignty and military intervention. These latter two norms exert powerful influence in situations of enforcing indictments and providing other resources to ICTs. Because of the influence of these norms, action is constrained in opposing ways, motivating the creation of ICTs, but inhibiting the full development of these institutions. The logic of consequences referred to by Snyder and Vinjamuri infers that certain situations require a deviation from appropriate action in order to obtain desired ends, while norm compliance is associated with a logic of appropriateness. This argument, however, misunderstands generative factors of behaviour. A s Thomas surmises, i f norms generate behaviour, then "there is considerable convergence between the logic of appropriateness and the logic of consequentiality [because] the logic of appropriateness structures the logic of consequentially." 2 7 While the consequences or desired ends may influence decisions to act a certain way, the context in which the decision takes place also dictates options for behaviour. A s Christian Reus-Smit identifies, some options are unthinkable while others seem Ibid., 37. 19 automatic. Rather than relegating ICTs as inappropriate in most situations of violent conflict, as sceptics suggest, one should look at the influence of norms on determining the outcome of such tribunals. The Normative Basis of Behaviour The relationship between norms and behaviour is complex, involving the process of the construction of actor identity predicated on an ideational basis. Constructivists look to the international system to identify the effect of norms on behaviour in international relations, thus providing a structural theory of behaviour. Rather than assuming that identity is exogenously given, as realist theories do, constructivists argue that actor identity is endogenous to the international system and constructed and reconstructed through interaction. The notion of identity is integral to determining behaviour because' identity "provides actors with primary reasons for. action."29 According to Reus-Smit, identity has two characteristics: it can be purposive as well as justificatory. Purposive identity informs an "actor's goals as well as the strategies they formulate to achieve them," while justificatory identity provides the "basis on which action can be rationalised, providing actors with a reason for being and acting." 3 0 Furthermore, identity and interest become linked as "interests 31 presuppose identities because an actor cannot know what it wants until it knows who it is." The formation of identity is the result of a social process in which "identities and their corresponding interests are learned and then reinforced in response to how actors are treated by significant Others." 3 2 This conceptualisation of identity, aptly elaborated by Alexander Wendt, represents systemic constructivist thought. A s outlined above, state identity is constituted through the interaction of states and the reproduction of state action. A s Reus-Smit notes, "within this Christian Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations, Princeton Studies in International History and Politics. (Princeton, N . J . : Princeton University Press, 1999), 34. 2 9 Ibid., 29. I Ibid. • • . Alexander Wendt, Social Theory of International Politics, Cambridge Studies in International Relations ; 67. (Cambridge, U . K . ; N e w Y o r k : Cambridge University Press, 1999), 231. 3 2 Ibid., 327. 20 schema, social interaction is the only constitutive dynamic."' While this is an important contribution to the understanding of state identity, it is also a very narrow view. For a complete understanding of how identity generates behaviour, a holistic constructivist approach becomes necessary. Holistic constructivism incorporates both domestic and international constitutive factors of state identity. 3 4 The holistic constructivist approach is important to the understanding of the functioning of ICTs, because both domestic and international constitutive sources of state identity contribute to state action regarding the implementation of ICTs, and determine how successful tribunals w i l l be. According to systemic constructivist thought, the process of identity construction and the notions of identity and interests are constructed in an international system constituted by shared ideas that form an intersubjective culture. The international system is thus thought of as a culture that provides "meaning to power and content to interests."3 5 The constructivist notion that the international system is comprised of shared ideas that create an international political culture differs from realist theories that regard the prevalence of material factors as the determination of state behaviour. The concept of an international culture entails that ideas constitute material causes of behaviour. While Wendt asserts that brute material forces do exist independent of ideas, 3 6 "it is only because of their interaction with ideas that material forces have the effects that they do." 3 7 Indeed, behaviour can result from self-interest, but the conception of this interest is derived from ideas. From a holistic constructivist perspective, state identity, and therefore interest, can also be constituted by domestic factors. The domestic factors pertinent to influencing the functioning of ICTs stem from the notion that the current state system is characterised by a moral purpose that comprises the advent of a new "individualist social ontology." 3 8 While a discussion of the normative basis of sovereignty bound, in part, by the notion of the moral purpose of the state is discussed further below, the important factor to consider is the "Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations, 166. 3 4 Ibid., 167. 3 5 Wendt, Social Theory of International Politics, 250. 3 6 Ibid., 94. 3 7 Ibid., 113. 3 8 Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations, 127. 21 subsequent elements of state interest derived from this conceptualisation of state identity. According to the notion of an individualist ontology, legitimate states have come to be "seen as those that expressed and furthered the interests of their citizens, understood not as subjects, but as sovereign agents."3 9 Furthermore, states are conceived of as "a human artefact instituted to protect [individual] liberties" and the notion of sovereignty is "invested by the body pol i t ic ." 4 0 The conceptualisation of an individualist social ontology provided the moral purpose of the state as an institution to uphold and represent the individuals that comprise a state, and became the "prevailing measure of political legitimacy and rightful state action." 4 1 In this way, an integral aspect of state identity is to represent the needs and beliefs of their citizens and this identity has important implications for the constitution of state interest. From this ideational foundation, norms emerge to either constitute identity, which are known as constitutive norms, or regulate behaviour, which are known as regulative norms. The generally accepted definition of a norm is "a standard of appropriate behaviour for actors with a given identity." 4 2 In a given situation, norms "establish expectations about who the actors w i l l be ...and how these particular actors w i l l behave." 4 3 Ideas that comprise state behaviour causes norms to become embedded in the institutions that govern action, and thus norms not only "influence the determination of which policies best serve state interests, but more fundamentally help shape those interests themselves, as well as the identities that give rise to them." 4 4 A s part of the manifestation of the ideas that comprise international culture, state identity, and interest, norms can become a primary motivation for action, in which actors behave as they do according to prevailing norms, despite the fact that this action may not seem to coincide with state interest. However, norms can also be complementary to state interest, where norms determine, or at least strongly shape the definition of, interest. " Ibid., 128. 4 0 Ibid. 4 1 Ibid., 131. 4 2 Martha Finnemore and Kathryn Sikkink, "International Norm Dynamics and Poli t ical Change," International Organization 52, no. 4 (1998): 891. 4 3 Ronald L . Jepperson, Alexander Wendt, and Peter J. Katzenstein, "Norms, Identity, and Culture in National Security," in The Culture of National Security : Norms and Identity in World Politics, ed. Peter J. Katzenstein and Social Science Research Counc i l (U.S.) . Committee on International Peace & Security., New Directions in World Politics (New Y o r k : Columbia University Press, 1996), 54. 4 4 Thomas, The Ethics of Destruction: Norms and Force in International Relations, 40. 22 The influence and operation of norms has been conceptualised as a three-stage "norm life-cycle" process by Martha Finnemore and Kathryn Sikkink . 4 5 They identify how norms become socialised and internalised in the international system. Norms have varying degrees of strength; some norms exert great influence on behaviour, such that norm compliance is a seemingly unconscious act, while other norms lack the ability to wield significant influence. Finnemore and Sikkink suggest that the strength of the norm is dependent on its stage in the life-cycle. The strongest norms are those at the third stage of the life-cycle, where norms have become internalised and acquired a "taken-for-granted quality" and compliance is no longer debated. 4 6 The first two stages involve norm emergence, where the norm is at its weakest, followed by a norm cascade, in which "norm leaders attempt to socialise other states to become norm followers." 4 7 Since Finnemore and Sikkink are primarily concerned with identifying how norms emerge and gather strength, and therefore compliance, they do not provide much investigation into the concepts that inform norms. They do suggest that norm compliance may be a result of the substance of the norms, citing arguments that norms that appeal to culturally transcendent values, implying that the ethical foundation of norms may influence compliance. 4 8 Ward Thomas provides more explanation, arguing that some norms can be seen as ethical norms. 4 9 Thomas provides a convincing argument that ethical norms have just as much influence as non-ethical norms, an important contribution to norms research because more traditional theories in the discipline of international relations have distinguished ethical, or altruistic, factors from self-interest, assigning ethics a place in the periphery. The argument for the influence of ethics in IR is important for explaining the creation of ICTs, as the motivation for their creation is the result, as Bass identifies above, of the principled idea of punishing those that violate international humanitarian law. This appears to be ethically based, rather than situated in the pursuit of self-interest or power. Because norms formulate standards of appropriate behaviour, scholars purport that "by definition there are no bad norms from the vantage point of those who promote the Finnemore and Sikkink, "International Norm Dynamics and Polit ical Change," 895. Ibid. Ibid. Ibid.: 907. Thomas, The Ethics of Destruction: Norms and Force in International Relations, 27. 23 norm". Norms are necessarily good in a sociological sense because it is the deviance from norms that informs inappropriate behaviour. The propriety of norms, however, is contextually dependent. The value conception of norms and their, prescription for behaviour can change as ideas that form the culture of the international system changes. Therefore, norms are "good" in so far as the context in which they exist. For example, scholars assert that former norms of slavery were historically seen as good, but are now admonished. 5 1 However, the relationship between norms and behaviour is more complicated than simply complying with internationally accepted norms. A s Ann Florini asserts, norms can conflict, and therefore compete with each other to influence action. 5 2 Decision makers must then determine which behaviour is appropriate according to these competing norms. A s Finnemore demonstrates, one should not view norms as "individual 'things' floating atomistically in some international space but rather as part of a highly structured social context." 5 3 According to this view, an individual norm does not singularly affect behaviour, but is situated in a context in which many norms exert influence. The influence of certain norms, and therefore choosing one action over another, may result from norm strength, particularly if a norm has become internalised such that compliance is akin to a subconscious act. The interdependent nature of norms is an important contribution to understanding the functioning of ICTs as states may be compelled to create tribunals, but may compromise its implementation due to the larger normative context and competing norms. The Larger Normative Context The norms that form the larger context that influence the creation and function of ICTs are those that comprise sovereignty and intervention. Traditionally, state sovereignty and the norm of non-interference have been proclaimed as supreme rights of states but this supremacy has been challenged in certain circumstances, particularly when human rights abuses have occurred. Despite these challenges, however, norms of state sovereignty remain powerful in international relations. In the literature on ICTs, these norms have been alluded ' Finnemore and Sikkink, "International Norm Dynamics and Poli t ical Change," 892. " I b i d . 5 2 A n n Flor in i , "The Evolution of International Norms," International Studies Quarterly 40 (1996): 367. 5 3 Martha Finnemore, The Purpose of Intervention: Changing Beliefs About the Use of Force, Cornell Studies in Security Affairs. (Ithaca: Cornel l University Press, 2003), 57. 24 to, but not analysed directly. Bassiouni notes that a reason why states have failed to enforce ICTs and provide them with the capabilities to arrest those that have been indicted is because of the "intricate relationship between the administration of justice and notions of national sovereignty." 5 4 This issue is a fundamental aspect of many ICTs and hybrid courts because the many of the conflicts that they are created to address are intrastate conflicts. A n explanation of the limited success of ICTs may be provided through analysing the nature of the relationship between norms of justice and norms of state sovereignty and intervention. The notion that sovereignty is comprised of norms is debated in international relations theory. Most realist and rationalist theories assert that states are an ontological given. They do not attempt to explain why the chosen method of current international political organisation is states. While states exist prior to the structure of the international system, they are also reproduced by the system through a process of natural selection. 5 5 Such theories argue that states are a priori egoist, and an anarchical system relegates states as actors who perpetuate this identity through the pursuit of self-interest and power. These notions are apparent in Stephen D . Krasner's work, in which state identity and interest are exogenously given. He asserts that actors already have preferences that exist prior to social interaction in the international system and that the international system is an "environment in which the logic of consequences dominate the logics of appropriateness."5 6 Therefore, state action is determined by the intended outcome or desired ends. Actors, in turn, determine these outcomes based upon calculations of material or ideational interests, which rest upon their desire to stay in power. 5 7 Krasner offers four types of sovereignty and determines that sovereignty can be conceived of as organised hypocrisy because all four types have been violated by various state actions. While such arguments made by Krasner identify with realist theories, he also asserts that the notion of sovereignty is comprised of a collection of norms, which deviates from these theories. However, rather than conceptualising sovereignty as a collection of norms that influence and constrain state behaviour, he believes it to be organised hypocrisy, in Bassiouni, "Justice and Peace: The Importance of Choosing Accountability over Realpolitik," 202. Wendt, Social Theory of International Politics, 320. Stephen D . Krasner, Sovereignty: Organized Hypocrisy (Princeton, N . J . : Princeton University Press, 1999), 6. Ibid., 7. 25 which "institutional norms are enduring but frequently ignored." This notion rests on the fact that stronger states are able to choose from among various rules those that best suit their instrumental objectives. States wi l l adhere to or violate norms depending on which action is more beneficial. 5 9 Thus, the normative basis of sovereignty does not compel states to act a certain way because norms do not greatly influence behaviour as constructivist theories assert. Krasner does concede the presence of norms that may occasionally influence identity, but reconciles the problem of the relationship between identity and behaviour highlighted by constructivist theory by arguing that identity and behaviour can be separated.6 0 While Krasner makes an important contribution to the understanding of sovereignty by emphasising contradictory state action, his arguments fall short due to a lack of explanation. He does not explain how actors can be exogenous to structure, and he divorces identity and behaviour also without explanation. This approach does not provide a compelling argument when compared to constructivist arguments offering a different ontology, and thus a more thorough treatment of the nature of sovereignty. Christian Reus-Smit offers a constructivist approach in which the notion of sovereignty is "encased within larger complexes of metavalues, encoded within broader constitutive frameworks." 6 1 Both Krasner and Reus-Smit take issue with sovereignty; however, whereas Krasner emphasises the weakness of the concept of sovereignty compared to the interest of powerful states, Reus-Smit contends that sovereignty emerges from values that give rise to state identity. He offers a complex argument about the construction of the notion of sovereignty that entails three tiers of hierarchically ordered institutions which incorporate three primary constitutive values. These institutions and constitutive values form the "context of pre-existing values that define legitimate agency and action," which structures the debate between states. Reus-Smit identifies the process of interaction between states as communicative action. A t the foundation of the hierarchy of institutions are constitutional structures which involve intersubjective beliefs, principles, and norms that "define what constitutes a ^ Ibid., 66. 5 9 Ibid., 24. 6 0 Ibid., 57. 6 1 Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations, 6. f ' 2 Ibid., 27. 26 legitimate actor, entitled to all the rights and privileges of statehood" and the "basic parameters of rightful state action." 6 4 The constitutional structures incorporate three normative elements; these are a hegemonic belief about the moral purpose of the state, an organising principle of sovereignty, and a norm of pure procedural justice. 6 5 These three normative elements provide the basis for the conceptualisation of sovereignty. The moral purpose of the state provides justification of sovereign rights, while the organising principle of sovereignty refers to the different methods of international political organisation and the various meanings of sovereignty within different historical contexts. The norm of pure procedural justice specifies the "correct procedures that 'legitimate' or 'good' states employ... to formulate basic rules of internal and external conduct." 6 6 The norm of pure procedural justice influences the type of practices that emerge in the international system, and gives meaning and legitimacy to these practices. It also provides "metanorms that. structure the process of communicative action that surrounds the production and reproduction of fundamental institutions." 6 7 B y formulating a hierarchy of institutions and identifying the norms that influence this hierarchy, Reus-Smit offers a compelling constructivist argument about the normative foundation of the concept of sovereignty, as well as the influence of the norms that inform this conception on state behaviour. The three normative elements Reus-Smit advocates contrast with Krasner's argument, in that they demonstrate the influence of the normative foundation inherent in state identity. A s constructivists argue, the normative basis of actor identity influences the actor's behaviour because behaviour is largely informed by identity. The concept of sovereignty is informed by these norms, which incorporates state action that may seem to be violations of sovereignty, but are in fact accepted forms of state behaviour. Reus-Smit identifies that sovereignty is not a static notion, but changes according to prevailing norms that comprise state identity. Because Krasner provides four static notions of sovereignty, certain state actions are seen as violating sovereignty, while Reus-Smit's argument suggests that, given the construction of sovereignty, these violations are actually rightful and legitimate state action. This conception of sovereignty suggests the larger normative context in which states Ibid., 30. Ibid., 26. Ibid., 32. 27 act and therefore indicates that the norms that comprise sovereignty influences state action. Following this notion, norms that comprise sovereignty influence the implementation of ICTs, since tribunals intervene in a state's domestic affairs and may even involve investigating and indicting heads of state, as in the case of the I C T Y . A s noted by Krasner, violations of state sovereignty are apparent in the history of sovereign states. Yet, as Reus-Smit purports, such violations are subject to carefully constructed notions of legitimate state behaviour; rarely do states wantonly violate the sovereignty of other states in ways that deviate from acceptable state practice. The territorial integrity norm, defined as the "respect for the proscription that force should not be used to alter interstate boundaries," 6 8 exemplifies one way in which the use of force and is constrained and the sovereignty of states is revered according to prevailing norms. Another example of an emerging practice that violates sovereignty is humanitarian intervention, which Finnemore identifies as "deploying military force across borders for the purpose of protecting foreign nationals from man-made violence." 6 9 Finnemore argues that intervention has taken place throughout the history of the state-system, but that conceptions of intervention have changed over time. According to Finnemore, norms occupy an integral place in determining policies of intervention, as norms permeate beliefs about rights and duties, as well as legitimate action. According to this belief, "humanitarian norms have shaped humanitarian military action." 7 0 However, as norms inform legitimate action, humanitarian intervention must be undertaken carefully, with consideration that certain actors and methods determine the legitimacy of intervention. In the current system, • Finnemore argues that international organisations, mainly the United Nations, are the 71 legitimate actors for authorising intervention, and that intervention should be multilateral. The careful construction of legitimate intervention may greatly influence the functioning of ICTs. Despite the fact that humanitarian norms have informed changes in humanitarian intervention, the larger normative context of humanitarian norms and norms of 6 7 Ibid., 34. f * Mark W . Zacher, "The Territorial Integrity Norm: International Boundaries and the Use of Force," International Organization 55, no. 2 (2001): 215. 6 9 Finnemore, The Purpose of Intervention: Changing Beliefs About the Use of Force, 53. 7 0 Ibid. 7 1 Ibid., 98. 28 state sovereignty may influence the functioning of ICTs. The construction of legitimate humanitarian intervention incorporates the notion of third-party militaries entering a conflict and protecting civilians from extreme violence, but does not include notions of enforcing ICT indictments. This issue becomes particularly complex if a primary suspect of the ICT is also the head of state where the conflict is taking is place, or a main actor in the conflict. This is when the larger normative context of intervention and sovereignty influence the functioning and enforcement of ICTs. The larger normative context of the international system, including norms of sovereignty incorporating the moral purpose of the state, and intervention form a part of the culture that informs state behaviour and identity. A s norms of justice and accountability emerge in the international system, they struggle to fit in with the larger normative context. S u m m a r y A s described above, the current literature on the use of ICTs posits a dichotomy between normative-based and interest-based explanations for the lack of success tribunals have experienced as instruments of transitional justice. M y argument incorporates a constructivist account in which interests and norms are seen as complementary to posit that the limited success experienced by ICTs can be more fully explained by the influence of the larger normative context on the functioning of tribunals. Furthermore, the relationship between norms and interest is given meaning through the influence of the larger normative context of sovereignty and intervention. In the case of ICTs, two fundamental components of the larger normative context, sovereignty and the use of force, exert influence. Sovereignty, encompassing notions of state identity, is constituted by both domestic and international factors. The individual ontology encompassed in the moral purpose of the state gives rise to the belief that part a state's legitimate action is to pursue and protect the interests of its citizens. Aware of this key aspect, states must also act according to norms prescribed by the larger normative context stemming from an intersubjective international culture. They adhere to normative conceptions of the appropriate use of force, but also act to preserve their interests as informed by the domestic body politic. Thus, states are motivated to create tribunals because of their compliance with international norms of justice and accountability, but are restrained in 29 enforcing tribunals because of state interest and international norms regarding the use of force. 30 Chapter 2: the ICTY The creation of the International Criminal Tribunal for the former Yugoslavia ( ICTY) , the first ad hoc tribunal created to address war crimes since the Nuremburg tribunal at the close of World War Two, was motivated by the atrocities committed during the violent conflict in the former Yugoslavia. Horrified by tactics used in the conflict, such as ethnic cleansing and massacres of civilians, the international community felt the need to address these tactics and uphold the norms and laws that guide practices in warfare. The I C T Y also incorporated other norms emerging in the practice of ending conflict and peace-building, norms of justice and accountability designed to facilitate enduring peace rather than the mere end of violence. Because states had not engaged in creating ad hoc tribunals consistently, however, it was difficult for the I C T Y to promote the norms of justice and accountability. This difficulty emerged in the former Yugoslavia, as the I C T Y tried to carry out its duties in the face of resistance from the very states that approved its creation. This situation affected the implementation of the I C T Y and its ability to secure indicted suspects, and led to the conclusion that the tribunal was not a very successful enterprise. Sceptics, and even some proponents, are not satisfied with the outcomes of the I C T Y and focus on the role of state interest in the implementation and functioning of tribunals as the reason for this lack of satisfaction. Proponents of the use of ICTs as instruments of transitional justice use normative explanations to posit the benefits of tribunals but then determine that state interest mitigates the full implementation, and thus use, of such tribunals. The tension between norms and interest is also apparent in the sceptical literature, using an explanation for the failures of ICTs that is based on state interest and the self-interest of the belligerents in a conflict. Sceptics assert that tribunals are not successful because they fail to address political realities of violent conflict. The assessment of the I C T Y put forth by both sides usually incorporates trade-offs between desired norms and political realities. M y analysis suggests that tensions between competing norms offer part of the explanation previously overlooked in the literature. The actions undertaken by the I C T Y and the accomplishments it has made do not suggest that it was either a complete failure or success; rather they suggest that the tribunal had limited success in carrying out its objectives. I argue that, by examining the influence of the larger normative context of sovereignty and 31 intervention, a more thorough analysis can be made to determine why the I C T Y experienced limited success. Specifically, the norms of sovereignty that comprise state identity and the norms that guide the use of force interact with the norms of justice and accountability embedded in the I C T Y , influencing the implementation of the tribunal and subsequent state action. In order to substantiate my argument, I w i l l first provide a brief overview of the events that occurred at the outbreak of violent conflict, first between Croatia and Serbia, then in Bosnia-Herzegovina, and finally culminating in Kosovo. Second, I examine the reasons given by proponents and sceptics about the apparent lack of success of the I C T Y in carrying out its function. Third, through analysis of these reasons, I then posit that the I C T Y is a case of limited success and finally explain how the influence of the larger normative context influenced the success of the I C T Y and state action regarding the tribunal. The Conflict in the Former Yugoslavia The conflict that occurred in the former Yugoslavia, like all c iv i l wars, is complex. Numerous factors and conditions led up to the outbreak of violent hostilities between Serbia and Croatia, culminating in a scramble for territory in Bosnia-Herzegovina. While the reasons that explain the resort to violence are varied and interdependent, the complexity was furthered by the shift from an intrastate conflict to an interstate conflict as other states recognised the provinces of the former Yugoslavia as states in their own right. Given this complexity and the involvement of the U N and the North Atlantic Treaty Organisation ( N A T O ) in the conflict, as well as the creation of the I C T Y , the events that occurred during the conflict are organised in three sections. The first section details the actions taken by the U N and N A T O in response to the conflict. The second section reports the actions undertaken regarding the I C T Y , and the third section describes the conflict in Kosovo and the extension of I C T Y jurisdiction to this region. UN and NA TO Involvement The outbreak of violent conflict began in 1991 as the provinces of Slovenia and Croatia seceded from the former Yugoslavia. The president of the former Yugoslavia, Slobodan Milosevic, effectively held political power and controlled the former Yugoslavian 32 army, the J N A , and began an offensive into Croatia in July 1991. The protection of Serbian dominated regions in Croatia is the motivation provided by Milosevic for igniting violent conflict against Croatia. The conflict in the former Yugoslavia is characterised by the efforts of elites to incite violence between ethnic groups. The Serbo-Croat conflict came to a cease-fire in early 1992 due to the efforts of the United Nations (UN) representative Cyrus Vance. The presence of a cease-fire enabled the U N to send in the United Nations Protection Force ( U N P R O F O R ) , a force of "10,000 peacekeepers to monitor the cease-fire, supervise protected areas, and provide other 'good offices' to preserve the peace."1 In addition to the implementation of the cease-fire, the European Union (EU) "invited Slovenia and Croatia to submit applications for recognition as independent countries," thus providing the shift from an intrastate conflict to an interstate war. 2 Despite the cease-fire arranged for the Serbo-Croat conflict, violent conflict spread to Bosnia-Herzegovina even before U N P R O F O R deployed to Croatia. 3 During this time, violent conflict became entrenched in Bosnia as Serbian, Croatian, and Mus l im (Bosniak) forces struggled to gain or preserve territory. A s a response, the U N extended the scope of U N P R O F O R to include Bosnia. The primary task of U N P R O F O R in Bosnia was "to support the provision of humanitarian assistance," working closely with the U N High Commissioner for Refugees ( U N H C R ) . 4 It soon became apparent however, that while U N P R O F O R was suitable to monitor the negotiated cease-fire in Croatia, it was not equipped to effectively manage conflict in Bosnia. Many of the soldiers "carried small arms and drove around in white A P C s , derisively called 'ice cream trucks' by the citizens of Sarajevo."5 The Chapter V I mandate given to U N P R O F O R ensured that they could not effectively offer protection to those affected by the conflict. While engaged in the conflict in the.former Yugoslavia, the.UN adopted measures that incorporated both Chapter V I and Chapter VII mandates of the U N Charter. The Chapter V I mandate given to U N P R O F O R refers to the section in the U N charter that details 1 Thomas R. Mockai t is , Peace Operations and Intrastate Conflict: The Sword or the Olive Branch? (Westport, Conn.: Praeger, 1999), 86. 2 Ibid. 3 Ibid. 4 D i ck A Leurdijk, "Before and after Dayton: The U . N . A n d N . A . T . O in the Former Yugoslavia ," Third World Quarterly 18, no. 3 (1997): 462. 5 Mockai t is , Peace Operations and Intrastate Conflict: The Sword or the Olive Branch? , 91. 33 the "pacific settlement of disputes" in which the parties "shall, first of all , seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice." 6 A Chapter VII mandate, however, entails the use of sanctions and the possible use of force and "may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security." 7 The U N employed sanctions and the use of North Atlantic Treaty Organisation ( N A T O ) forces to address the worsening situation in Bosnia and complement the U N P R O F O R troops deployed there, which fell under a Chapter VII mandate. The U N Security Council (UNSC) imposed economic sanctions in May 1992 and deployed the N A T O mission 'Maritime Monitor ' "as a simple monitoring operation." 8 In October 1992, the U N established a "ban on military flights in the airspace of Bosnia-Herzegovina". 9 These actions were further strengthened by the U N S C as it extended sanctions in November 1992, and in March 1993 strengthened the ban on military flights. 1 0 The forces involved in the conflict in Bosnia, which were divided along ethnic lines, initiated policies of ethnic cleansing, in which people who resided in regions controlled by another ethnic group were forcibly displaced, raped, tortured, and killed. These actions incited the U N S C to implement Resolution 836 in June 1993, which created a policy of safe areas in which U N P R O F O R would be able to use necessary measures, including the use of force, to act in self-defence and protect the designated safe areas. The safe areas included the towns of Sarajevo, Tuzla, Zepa, Gorazde, Bihac, Srebrenica, and their respective surroundings. This policy was undertaken according to Chapter VII of the U N Charter, thus implementing a Chapter VII policy to a force with a Chapter V I mandate. In early 1994, N A T O authorised the use of air strikes in order to protect the safe areas. Many accounts cite the massacre at a Sarajevo marketplace as the final impetus for such use of force. Up until this point, N A T O and the U N were reluctant to use force in the 6 United Nations, Charter of the United Nations (1945); available from http://www.un.org/aboutun/charter/ 7 Ibid. 8 Leurdijk, "Before and after Dayton: The U . N . A n d N . A . T . O in the Former Yugoslavia ," 460. 9 Ibid.: 461. 1 0 The ban on military flights could be implemented by the use of force, but under certain conditions and initiated the operation 'Deny Flight . ' See Leurdijk, "Before and after Dayton: The U N and N A T O in the Former Yugos lav ia , " 461. 34 conflict. The use of air strikes came to a halt, however, in May 1995, when Serb forces in Bosnia took 350 U N P R O F O R soldiers hostage. In response to this, the "American government decided to quietly put off air strikes," a move supported by the British and French who were cautious about actions that could harm their soldiers in Bosnia . 1 1 After this incident, N A T O became more cautious about the use of force until operation 'Deliberate Force' was initiated in order to secure a peace agreement in the fall of 1995. A t the end of July, 1995, Bosnian Serbs entered into Srebrenica and massacred at least seven thousand people, mainly Muslims, an event that became known as "the single worst crime against humanity in Europe since World War I I ." 1 2 The Dayton Peace Agreement was finally signed on 14 December 1995, formally ending the conflict in Bosnia. In the subsequent task of ensuring and enforcing peace, N A T O held a primary role in constructing the Implementation Force (IFOR) which took the place of U N P R O F O R . The Dayton Peace Agreement was the result of the negotiation efforts of the American Assistant Secretary of State, Richard Holbrooke. The Dayton agreement provided for the "distribution of territory between the Croat-Muslim federation and the Bosnian 13 Serbs." The agreement also incorporated provisions that all parties should cooperate fully with the I C T Y , that indicted persons are not allowed to hold public office, and that IFOR is given the right to "monitor and help ensure compliance" with the tribunal, but are not obligated to do so. 1 4 Actions undertaken by the ICTY In 1992, the U N authorised the creation of the Commission of Experts to Investigate the War Crimes and other Violations of International Law in the Former Yugoslavia in response to practices of ethnic cleansing occurring in Bosnia. The Commission later led to the creation of the I C T Y in February 1993. In July 1994, Richard Goldstone, a prominent South African judge was appointed as the tribunal's prosecutor. Initially, the tribunal only indicted low level offenders, such as "Dragan Nikol ic , Serb commander of the Susica 1 1 Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 225. 1 2 Ibid., 230. 1 3 Lenard J . Cohen, "Bosnia and Herzegovina: Fragile Peace in a Segmented State," Current History 95, no. 599 (1996): 108. 1 4 Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 245. 35 concentration camp...and Dusko Tadic, Omarska camp torturer."1 5 However, in July 1995, Goldstone indicted Radovan Karadzic, the leader of the Bosnian Serbs, and Ratko Mladic , the General of the Bosnian Serb army. They would later be indicted again in November 1995 for their part in the massacre at Srebrenica. During the conflict in Bosnia, Goldstone found it difficult to persuade U N and N A T O forces to arrest those indicted by the tribunal. Even after the Dayton accord, the IFOR mission was reluctant to arrest those indicted by the tribunal. Those involved with the tribunal and those that supported it criticised N A T O for not pursuing war criminals more forcefully, and also for the weak provisions provided to the tribunal in the Dayton agreement. N A T O continued its reluctance to arrest indicted suspects until Louise Arbour, who succeeded Goldstone as the tribunal's prosecutor in October 1996, introduced a policy of secret indictments. Despite the increasing success of the secret indictments in motivating N A T O to arrest indicted suspects, Karadzic and Mladic were never arrested and are still at large. 1 6 Extension into Kosovo The I C T Y was created to address violations of international law regarding human rights and warfare during the violent conflict that occurred in the former Yugoslavia, but its jurisdiction was extended in 1998 to include the events that had occurred, and would occur, in Kosovo. When Milosevic rose to power in the former Yugoslavia in the 1980s, he engaged in a policy of repression against the ethnic Albanians that inhabited Kosovo. Before this, Kosovo was a relatively autonomous region with an ethnic Albanian majority. However, Milosevic repealed Kosovo's autonomy before conflict erupted. After the Bosnian conflict had ended, Milosevic focussed his attention to Kosovo and refused to return its autonomous status, instead inciting Serbian nationalism and rights to the region. These policies led to the outbreak of violence between the Serbian forces and the Kosovo 1 5 Pierre Hazan, Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia, 1st ed., Eugenia and Hugh M. Stewart '26 Series on Eastern Europe (College Station: Texas A & M University Press, 2004), 57. 1 6 Karadzic 's son was arrested on 7 July 2005 by N A T O troops, an action designed to get closer to an arrest of Karadzic himself. See Patrick Bishop, Nato Troops Seize Karadzic's Son on Eve of Massacre Anniversary (Telegraph Online, 2005); available from http://www.telegraph.co.uk 36 Liberation Army ( K L A ) , as well as policies of ethnic cleansing. Milosevic also refused to recognise the legitimacy of the I C T Y and frequently barred Arbour from gaining access to Kosovo, who wanted to find evidence to corroborate claims of ethnic cleansing. American and European delegates resumed negotiations with Milosevic and the Albanians in the hope of securing an end to this conflict. Peace talks were convened by N A T O in Rambouillet, France; however, Milosevic refused to attend, resulting in the failure of the negotiations. On 24 March 1999, after the failure of the negotiations in Rambouillet, N A T O began a bombing campaign on Serbia. A t the end of May 1999, Arbour indicted Milosevic for crimes against humanity committed in Kosovo; later he would also be charged with crimes committed in the conflict that occurred in Croatia and Bosnia. Despite the willingness of N A T O to use force, in contrast to the reluctance shown in the Bosnian conflict, they were unwilling to arrest Milosevic after he was indicted. 1 7 Instead, they pressured the new government in Serbia, led by President Vojislav Kostunica, to arrest Milosevic and hand him over to the tribunal. Kostunica conceded, and Milosevic was handed over to the tribunal in Apr i l 2001. Accommodat ion vs. Accountabi l i ty The case of the I C T Y is used by both those supportive and sceptical of the tribunal as a means to illustrate their arguments. Proponents believe that the creation of the I C T Y is a tremendous accomplishment for international law, but are disappointed with what they see as the defection to realpolitik, or an approach of accommodation. 1 8 According to this notion, even though the international community may be motivated by moral and ethical reasons to create an International Criminal Tribunal (ICT), the effectiveness of the tribunal is inhibited by the "pursuit of political settlements unencumbered by moral and ethical limitations." 1 9 This belief entails that the logic of appropriateness was easily eschewed for an approach that incorporated a logic of consequences. A s Christopher Rudolph notes, documented atrocities compelled intervention, but the "political and strategic complexities involved provide an unappealing scenario for the international community." 2 0 Sceptics, however, cite the 1 7 Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 21 A. 1 8 Scharf and Wi l l i ams , "The Functions of Justice and Anti-Justice in the Peace-Building Process," 179. 1 9 Bassiouni, "Justice and Peace: The Importance of Choosing Accountability over Realpolitik," 191. 2 0 Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 662. 37 political realities of trying to enforce a tribunal when attempting to negotiate an end to a war as the main reason for the limited success of the I C T Y . Thus, for sceptics, it was necessary to abandon the logic of appropriateness approach entailed by the tribunal because of the resulting consequences. In order to secure the cessation of violence in the former Yugoslavia, the I C T Y could not be enforced to the extent that proponents called for. Proponent Arguments A n integral component of the proponent literature is the notion that norms motivate states to create ICTs. Furthermore, proponents adopt a normative argument that incorporates the notion that these norms are ethical and therefore do not reflect state interest, thus separating norms from interest as explained in the theory chapter. The normative elements of ICTs are apparent in the process that initiated the creation of the I C T Y . The knowledge of Western governments of the atrocities committed in the Bosnian conflict, coupled with pressure from international c ivi l society groups, compelled these states to create the Commission of Experts, and eventually the I C T Y . The influence of the norms of justice and accountability is further evidenced by the fact that states engaged in creating the Commission of experts and the I C T Y , even though these states were concerned that these actions may compromise the peace negotiation process. Despite the accomplishment the creation of the I C T Y signified for transitional justice, the subsequent functioning of the court incited disappointment among proponents of ICTs about the ability of norms of justice and accountability to influence state action. Proponents cite two main reasons to explain the initial failures of the I C T Y : the policies of Western nations involved in negotiating a peace agreement for the Bosnian conflict, and the reluctance of these nations to enforce the tribunal. The policies of the Western nations involved in negotiations during the conflict in the former Yugoslavia reinforce the notion that norms of justice could be cast aside when faced with political realities. A s M . Cherif Bassiouni notes, the "dominant approach was to induce the parties to accept a negotiated settlement," in which all the parties were treated according to the concept of equality where all sides were determined to be equally at fault in the conflict. 2 1 The Bassiouni, "Justice and Peace: The Importance of Choosing Accountabili ty over Realpolitik," 198. 38 approach of accommodation "instructs a negotiator to seek to end the conflict by meeting as many of the objectives of each party as possible, thereby accommodating their interests and satiating their appetite for more conflict." 2 2 This approach served to legitimise actors such as Milosevic as "contributor[s] to peace," which undermined the norm of justice. 2 3 Because these actors were engaged as contributors to peace, it became difficult for the same parties that endorsed this view to support the notion that they could also be war criminals. It should be noted, however, that after Karadzic and Mladic were indicted, negotiators such as Richard Holbrooke were wary about negotiating with them and preferred not to. The reluctance of U N P R O F O R and N A T O forces to enforce the I C T Y is also fundamental to the belief that accountability was eschewed in light of the political realities on the ground in the former Yugoslavia. U N P R O F O R and N A T O refused to arrest indicted suspects during the conflict, and it was not until 1997 that N A T O made its first arrest. Again, this reluctance is assigned to the notion that states engaged in attempting to halt the conflict are governed by the political realities that mitigate the role of the norm of justice. Pierre Hazan purports that the I C T Y has the propensity to "push U N P R O F O R out of its role as 'peacekeeper' and into direct military confrontation with the aggressors."2 4 During the conflict in Bosnia, nations such as Britain, France, and the United States were unwilling to risk their respective soldiers in order to pursue and arrest indicted suspects. The governments of these states believed that engaging in arrests of indicted suspects would incite a backlash from the forces in Bosnia, particularly the Serb forces. The policy of accommodation and the unwillingness to arrest those indicted by the I C T Y lead to the conclusion that "although norms and ideas of human rights prompt calls for state action in cases of genocide and war crimes, the case of the I C T Y illustrates how the strategic interests of powerful states... shape the process of institutionalisation and its use." 2 5 The functioning of the I C T Y led proponents to become disappointed in the possibility of ICTs as instruments of transitional justice due to the interference of state interest. The Scharf and Wil l i ams , "The Functions of Justice and Anti-Justice in the Peace-Building Process," 179. 2 3 Wi l l i ams and Taft, "The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement?," 224. 2 4 Hazan, Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia, 45. 2 5 Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 660. 39 structure of the proponent literature posits a dichotomy between norms and interest, in which interest prevails over norms. This structure is furthered by the normative prescriptions adopted by proponents of the use of ICTs. Their disappointment of the interference of state interest in the functioning of tribunals implies that states and other actors in conflict resolution should adhere to norms of justice and accountability because of the virtue of these, norms; because they are "good" and are integral to guaranteeing enduring peace. Also inherent in the literature is the notion that these virtuous qualities of such norms should supersede state interest. The Sceptical Response A s described in the theory chapter of this thesis, those sceptical of the use of ICTs in conflict resolution also separate norms and interests. However, in contrast to the proponent literature, sceptics conclude that the nature of the situation of violent conflict and the process of attempting its resolution is one that calls for action based on interest rather than norms. In the situation of conflict resolution, action influenced by norms is simply not a suitable option. Sceptics such as Jack Snyder and Leslie Vinjamuri purport that the tension between the logic of appropriateness and the logic of consequences that influences the success of ICTs resides on the relationship between norms and change. These authors argue that the social constructivist theory of normative change, exemplified by Martha Finnemore and Kathryn Sikkink's three-stage norm life-cycle process, "fundamentally misunderstands how norms gain social force." 2 6 According to this notion, the influence of norms depends on their contribution to the strategic interests of the actors involved. A s Snyder and Vinjamuri conclude, in order for norms to shape behaviour and outcomes, "they must gain the support 27 of a dominant political coalition in the social milieu in which they are to be applied." Since the I C T Y did not have the full support of the Croatian, Bosnian, and Yugoslavian governments, it was deemed to be a failure. This lack of support inhibited the development of the I C T Y ' s legitimacy in the former Yugoslavia. Although provisions to respect and cooperate with the I C T Y were included in the Dayton Peace Agreement, the Milosevic 2 6 Snyder and Vinjamuri , "Trials and Errors: Principle and Pragmatism in Strategies of International Justice," 12. 2 7 Ibid.: 13. 40 government in particular ignored these provisions. These actions are used to substantiate the notion that norms can only exert influence insofar as they have the support of the dominant political coalition. In addition to the inability of the I C T Y to gain legitimacy in the former Yugoslavia, sceptics also cite the tribunal's failure to deter subsequent atrocities as another indication of its lack of success. Snyder and Vinjamuri look to the atrocities committed at the U N declared safe area of Srebrenica, as well as the Serbian campaign to ethnically cleanse the Kosovo region as examples of the tribunal's lack of deterrence capacity. Since the objective of conflict resolution is to.halt to violence and facilitate peace-building, the deterrence capacity of ICTs becomes an important factor. Furthermore, the reluctance of the I C T Y to indict political leaders early on in its operation resulted in "legitimising the Serbian 29 regime, which then committed nearly identical atrocities in Kosovo." Since the case of the I C T Y demonstrates the inability of tribunals to promote deterrence, coupled with their failure to gain domestic legitimacy, they are deemed unsuitable for peace-building and alternatives to ICTs should be promoted, such as the use of granting amnesties. 3 0 Assessing the Success of the ICTY The arguments provided by both the proponents and sceptics of the use of ICTs include important insight into the creation and functioning of tribunals. Proponents of the use of ICTs demonstrate the influence of norms of justice and accountability, even when adherence to such norms appears to counter state interest. Even though the British, French, and Americans were wary of the difficulties the creation of the I C T Y may have for negotiating a peace settlement, they did eventually approve its creation. However, arguments put forth by those sceptical of the use of ICTs also accurately identify how state interest is an important factor that influences the full implementation and functioning of tribunals. The literature also addresses the reasons why ICTs have experienced important failures in their operation. In determining the success of the I C T Y , both proponents and sceptics agree that the tribunal was not overwhelmingly successful in Bosnia. The main difference between the 2 8 Ibid.: 20. 2 9 Scharf and Wil l i ams , "The Functions of Justice and Anti-Justice in the Peace-Building Process," 172. 3 0 Snyder and Vinjamuri , "Trials and Errors: Principle and Pragmatism in Strategies of International Justice," 44. 41 two, however, is the reason why. Proponents of ICTs as an instrument of transitional justice argue that the approach of accommodation and the unwillingness to enforce the I C T Y negated an approach that championed norms of justice and accountability. The reason given to explain why states (such as France, Britain, and the United States) adopted these policies lies in the selfishness inherent in these states, exemplified by putting the needs of their own citizens' first. 3 1 The fear of reprisals and the unwillingness to sacrifice the safety of their own troops are the reasons why states failed to enforce the I C T Y . Such policies have led proponents of the necessity of ICTs as instruments of transitional justice to believe that the creation of the I C T Y was an "act of tokenism by the world community, which was largely unwilling to intervene in ex-Yugoslavia but did not mind creating an institution that would give the appearance of moral concern." 3 2 This assessment entails that, without a serious commitment to implement ICTs, tribunals w i l l not be able to develop to their full potential. The problem with such an assessment is that creating the I C T Y became an expensive and enduring act of tokenism, suggesting more of a commitment to the ideals embedded in the tribunal than this assessment warrants. While the initial actions of the international community support the belief that the I C T Y was just a token institution, due to the lack of resources given to the Commission of Experts and the tribunal, subsequent actions do not support this conclusion. A s the tribunal continued its activities, its budget grew from waiting for the U N to determine its budget and procure funds in 1993, to a budget of $11 mil l ion in 1994, $28 mill ion in 1995, and $41 mill ion in 1996. 3 3 In addition to its growing budget, the mere fact that the tribunal continues in its existence attests to the notion that it was more than just an exercise in tokenism. Just as a U N S C resolution created its existence, the U N S C could have passed a resolution to disband the I C T Y . Furthermore, while Karadzic and Mladic remain at large, Milosevic was eventually arrested and handed over to the tribunal. Even though Milosevic was arrested by the Serbian police, pressure from nations such as the United States was integral to this arrest. Such proponents of transitional justice disappointed with the outcome of the I C T Y may be misguided in their belief that that the I C T Y was merely created as a paper tiger. 3 1 Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 8. 3 2 Ibid., 207. 3 3 Ibid., 254. 42 Similarly, sceptics should not regard the events that occurred at Srebrenica as evidence to substantiate the notion that the I C T Y failed in its capacity to promote deterrence. When the massacre occurred at Srebrenica, the I C T Y was facing substantial resistance from the international community to engage in policing on behalf of the tribunal. Because of this reluctance, the I C T Y was not considered a serious threat. Therefore, "a better test for the deterrent capacity of the I C T Y is whether the threat of indictment and trials was effective once the tribunal actually began to gain custody of suspects and put them on t r ia l . " 3 4 Furthermore, the actions of the negotiators, following a policy of accommodation advocated by sceptics such as Snyder and Vinjamuri, contributed to the occurrence of further atrocities. The policy of engaging political leaders involved in the violent conflict in the former Yugoslavia resulted in legitimising their role as leaders and as partners in peace negotiations. Rather than mitigating the occurrence of future atrocities, this policy seemed to legitimise the commission of atrocities to secure a place at the negotiating table. A s Paul Will iams and Patricia Taft note, "rather than dismantling the achievements of ethnic cleansing, the Dayton Accords formally ratified these gains by formalising the ethnically territorial ambitions of Mi losev ic . " 3 5 The policy of legitimising the Milosevic regime through engaging him in peace negotiations at Dayton could be seen as a failure to deter further atrocities, as this policy "left the door open for [Milosevic's] genocidal campaign in Kosovo four years later." 3 6 Despite the important insights provided by both proponents that have become disappointed in the implementation of the I C T Y , and the sceptics of the use of the I C T Y altogether, the analysis of the claims made in the literature as to the reasons of the failure of the I C T Y indicates the need for a more complete understanding of the process of the creation and implementation of ICTs. The failure of the proponent literature to examine the endurance of the I C T Y , despite the negative impact of state interest on its functioning, and the lack of acknowledgement by the sceptics that the pragmatic accommodation of " Joanne Lee and Richard Price, "International Cr iminal Tribunals and the Criminalisation of International Violence," in The United Nations and Global Security, ed. Richard M . Price and Mark W . Zacher (New Y o r k : Palgrave Macmi l l an , 2004), 129. 3 5 Wi l l i ams and Taft, "The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement?," 230. 3 6 Ibid.: 228. 43 belligerent interest may have actually contributed to the occurrence of further atrocities, suggests that these explanations are insufficient. Since the literature is divided between promoting a normative explanation and a self-interest explanation, providing a constructivist analysis which identifies the complementarity between norms and interest w i l l contribute to a better understanding of the limited success of the I C T Y . B y analysing the influence of the larger normative context on the functioning of the I C T Y , one can achieve a better understanding of its failures. Furthermore, despite the initial failings of the I C T Y to facilitate conflict resolution, the tribunal did eventually achieve some success in trying key figures in the conflict. To date, the I C T Y has publicly indicted 162 individuals since the tribunal's 31 inception, and 126 of the accused "have appeared in proceedings before the tribunal." The number of individuals that have been indicted and appeared before the tribunal is an accomplishment of international criminal law that has greatly exceeded what sceptics in particular, and also proponents disappointed in the early aftermath of the implementation of the I C T Y , expected when writing about the tribunal in the 1990s. Through examining the ways in which norms constitute state identity, and therefore interest, a more complete understanding of the creation and implementation of tribunals can be attained. T h e L a r g e r N o r m a t i v e Contex t : S i tuat ing the I C T Y The explanations given by the proponents and sceptics of ICTs only go so far to explain their outcomes. In order to more fully understand the limited success experienced by ICTs such as the I C T Y , a structural theory of international relations w i l l be utilised. A s outlined in the theory section of this thesis, constructivist theory purports that ideas help define conceptions of state power and interest. While there is a distinction between ideas and "brute" material forces 3 8, the fundamental notion is that "the meaning of power and the content of interests are largely a function of ideas." 3 9 Given this relationship between ideas and interest, in certain situations, norm-based explanations can be seen as complementary to explanations grounded in state self-interest. In this context, material factors and state self-interest are given meaning by ideas, identities, and norms. The relationship between ideas, ' International Cr iminal Tribunal for the former Yugoslavia , The I.C.T.Y. Homepage (2005); available from http://www.un.org/icty/glance/index.htm accessed 17 September 2005. 3 8 Wendt, Social Theory of International Politics, 94. 3 9 Ibid., 96. 44 norms, identity, and interest provides the generative basis for behaviour. States with a certain identity behave according to the interests shaped by this identity. Identity and interest, in turn, are formulated by ideas. Furthermore, actor identity is constructed and reconstructed through interaction. In this process, certain ideas and norms become shared and embedded in what Alexander Wendt identifies as an intersubjective culture, in which shared ideas and understandings structure behaviour. 4 0 The intersubjective culture of the international system gives meaning and legitimacy to conceptions of state interest and action. Norms and Self-Interest In the case of the I C T Y , the reluctance of states to enforce the tribunal can be explained by the complementarity between norms and interest. The proponents that are hopeful of the use of ICTs but are disappointed with the outcome of the I C T Y have alluded to the influence of the conception of sovereignty, but have not fully analysed its influence. Christopher Rudolph purports that, ' in matters involving acts of war and treatment of a nation's citizenry, the dominant norm in the modern period is deference to national sovereignty." 4 1 The deference to national sovereignty, however, is not an unchanging tenet of the international system. It has been demonstrated that is it not unheard of for states to violate another state's sovereignty as long as such actions falls under acceptable and legitimate state behaviour. The assessment that the difficulty of creating models of the international administration of justice is a result of the relationship between administering justice and concepts of national sovereignty is too vague to help determine why ICTs have only achieved limited success. 4 2 Furthermore, the notion of national sovereignty advocated in such literature does not account for the construction of the concept of sovereignty. The conceptual basis of sovereignty, and of states in general, is bound by "intersubjective meanings that define what constitutes a legitimate state and what counts as appropriate state conduct." 4 3 These ideas provide the basis of notions of state identity and acceptable state action, which become embedded in norms of state sovereignty and 4 " l b i d . , 249. 4 1 Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 657. 4 2 Bassiouni, "Justice and Peace: The Importance of Choosing Accountability over Realpolitik," 202. Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations, 156. 4 5 intervention. In order to determine how sovereignty affects state behaviour, the notion of sovereignty must incorporate the values that inform state identity. State identity goes beyond the organising principle of sovereignty to incorporate values that comprise a legitimate actor and the "basic parameters of rightful state action," or what Reus-Smit refers to as the "constitutional structures" of state identity.44 This notion of state identity must incorporate the values that provide the legitimacy of sovereign states and these values comprise the "moral purpose of the state."45 The values that inform state identity formulate norms of state behaviour that coincide with this identity and comprise what I refer to as the norms of state sovereignty, incorporating the moral purpose of the state. Regarding states and sovereignty as social constructions facilitates a better understanding of the functioning of ICTs because, according to this view, there is no separation of norms and interest; there is no mutually exclusive dichotomy of choosing to either adhere to norms or to defer to state, interest. In the case of the ICTY, an explanation in which norms constitute interests is more accurate than one that separates norms and interest, which is prevalent in the literature described above. The constructivist account of state identity, in which "societies of states are communities of mutual recognition," incorporates the conceptualisation of the moral purpose of the state based on an individualist ontology.46 According to this ontology, the state exists to represent the interests of a state's citizens and this body politic informs the notion of sovereignty.47 This conceptualisation of the state gave way to the creation of the democratic state. A corollary of this conceptualisation of the state is that the care of a state's own nationals becomes an integral component of state interest and thus states become reluctant to risk the safety of their citizens, even those that comprise the states' armies. Furthermore, the current culture of the international community informs appropriate state behaviour. To see how this is so, consider the argument that states should refrain from implementing ICTs because of state interest in mitigating risk to their soldiers; while this may seem to straightforward, this 'interest' is revealed as contextual and contingent - that is, constructed in a normative context - when considering that in other eras before the emergence of the national citizen-soldier, this 'interest' might not have even arisen as an issue. Indeed, an Ibid., 30. Ibid., 159. Ibid., 156. 46 alternative today that would not compromise this interest would be to send in mercenaries to engage in military intervention and conflict resolution. By using mercenaries, a state w i l l not need to risk its own nationals when intervening in violent conflicts. However, the use of mercenaries has become an unacceptable option for legitimate states in the international community. The intolerance of the use of mercenaries attests to Reus-Smit's conclusion that appropriate state action is defined by the broader constitutive frameworks embedded in the culture of the international community. Since the only acceptable intervention force is comprised of states' own militaries, states were reluctant to enforce the I C T Y for fear of retaliation. The fear of retaliation originated with events that occurred in Mogadishu, Somalia in 1993. In this incident, the U N authorised forces in Somalia to track down and arrest specific individuals. When an arrest attempt was made in October, eighteen American soldiers were killed, and the operation became a public fiasco. These events made states involved in intervention operations more aware of the risk facing their soldiers and become reluctant to engage in mission creep, whereby intervention or peace-keeping missions are increasingly adapted to engage more actively in the situation in which they are placed. The fear of retaliation in Bosnia became even more substantiated with the hostage-taking incident in May 1995 by the Bosnian Serb forces. Furthermore, the possible threat to U N P R O F O R , and later N A T O and IFOR soldiers also risked diminishing domestic support for these operations in Bosnia. In order for a domestic population to be wil l ing to sacrifice their fellow nationals in a war that they are not directly involved in, they need to sufficiently adopt the cause of this involvement. According to Gary Jonathan Bass, the public w i l l only be wil l ing to accept the loss of their own soldiers if this public is sufficiently outraged by atrocities committed in a conflict to support enforcing a tribunal. 4 8 However, in the Bosnian conflict, despite the documentation of atrocities and human rights abuses, state leaders, particularly President Clinton, were reluctant to become involved because the conflict had no constituency in their respective nations 4 9 The threat to soldiers involved in the intervention forces coupled with the Ibid., 127. Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 32. Ibid., 225. 47 unwillingness of the domestic populations to support such operations resulted in the reluctance of western states to enforce the tribunal A result of the current construction of the state, and the conceptualisations of state identity and interest that forms a part of this construction, is the marked differentiation of the treatment of a state's own citizens compared to those of another state. Inherent in the reluctance to risk the lives of a state's own soldiers is the belief that certain people's lives are worth more than others. The state interest in securing the lives of its citizens includes the notion that a state can go to great lengths on behalf of their own nationals. According to Gary Jonathan Bass, "what is striking is not just that even liberal states value the lives of their own more than those of foreigners, but how radically the lives of foreigners are discounted." 5 0 He cites the example of the rescue mission for John O'Grady, an American pilot who was shot down by the Bosnian Serbs in 1995. He notes that while the "White House still refused to send. American troops to save Bosnian civilians, America went to extraordinary lengths to bring O'Grady home safe." 5 1 That such efforts would be much less likely for a mercenary, as well as another state's citizens subjected to grave security threats, attests to how structures of sovereignty provide the normative context in which state interests are defined. Norms and the Use of Force The modern construction of state identity reflects embedded values that structure shared understandings of appropriate state behaviour. Part of the concept of the state is the taken-for-granted belief that it is in self-interest of a state to ensure the security of its citizens, including its soldiers involved in violent conflicts. This issue is particularly contentious when a nation's soldiers are involved in a third-party intervention force. However, the fact that states engage, in the role of the third-party, in negotiating the cessation of conflicts between or within other countries, indicates the belief that part of the moral purpose of the state is to restrain violent conflict. While this may itself not always be entirely divorced from self-interest, this restraint has emerged as an international norm of state behaviour, becoming part of state identity to the extent that states w i l l adhere to this norms even in cases where Ibid., 29. 48 states to do have evident self-interest. Moreover, because of the regulative nature of these norms, states are constrained in their actions when engaging in conflict resolution. Integral aspects of state identity are constraints on the use of force because "the necessary condition for sovereignty among states is non-intervention." 5 2 This condition provides a fundamental component of the current construction of the international state system. These constraints are manifested through documents such as the U N Charter, which stipulates specific instances that warrant the use of force, and the norms and laws of warfare. In the former Yugoslavia, the nature and mandate of U N P R O F O R was circumscribed by norms of intervention and sovereignty. The need to constrain the use of force has resulted in specific conceptualisations of the notion of intervention. A s Finnemore asserts, "for intervention to 'work' and be useful politically, it must achieve a goal that states and domestic publics accept and do so in a manner they view as legitimate." 5 3 The norms that inform the appropriate use of force determine the difference between legitimate military intervention and war. Legitimate peacekeeping missions are guided by three principles: they are deployed at the consent of the belligerents involved in a conflict; they are to consist of lightly armed, neutral troops who are allowed to use force only in self-defence; and they are to monitor a cease-fire, rather than be involved in active conflict. 5 4 This concept of peacekeeping emerged in 1945, and has become known as classical peacekeeping. U N P R O F O R ' s Chapter V I mandate is in line with the principles of classical peacekeeping, which have come to form the norms of peacekeeping missions. While the incident in Somalia and the phenomenon of mission creep has guided state policies of intervention, the norms of peacekeeping have also exerted influence. The norms of peacekeeping are primary examples of constraint regarding the use of force in the international system. The clear provisions that peacekeeping missions must be neutral and used specifically to monitor a cease-fire indicate that these missions differ from acts of invasion and war. The norms regarding the use of force are manifested in U N P R O F O R ' s Chapter V I mandate, as well as in the fact that the soldiers were lightly armed and first deployed to monitor the cease-fire between Serbia and Croatia. Intervening in i b id . 5 2 Finnemore, The Purpose of Intervention: Changing Beliefs About the Use of Force, 8. 5 3 Ibid., 18. 49 active conflict was not a well established practice, as a British Colonel in Bosnia confirmed when he stated that it "wasn't a task the British Army had done before...we were sitting in the middle of somebody else's war." 5 5 The decision to extend U N P R O F O R into Bosnia put them in the middle of an active war-zone and into a situation for which they were not prepared. This decision exposed the soldiers that belonged to U N P R O F O R to security threats, as they were ill-equipped to even defend themselves. Therefore, if U N P R O F O R soldiers engaged in arrests, the reprisals they faced from forces in Bosnia, such as the Bosnian Serbs would put them at risk. In this way, the norms guiding the use of force influenced the ability of states to enforce the I C T Y . In a report from November, 1999 K o f i Annan, the U N Secretary General, declared that the international community '"applied the rules of peacekeeping'" despite the fact that there was no peace to keep. 5 6 The norms guiding the use of force, manifested in the concept of a legitimate peacekeeping force, further influenced the ability of states to allow U N P R O F O R , N A T O , and IFOR to arrest indicted suspects. Such norms entailed that these forces were not equipped to effectively ensure their security in the wake of retaliation. • The need, or desire, to intervene into conflict such as the one that occurred in Bosnia has resulted in a re-evaluation of intervention policies, structuring the terms of what humanitarian intervention should be in the current international system. However, changes regarding the use of force are slow in developing. The Responsibility to Protect, a document that indicates current opinion about the nature of humanitarian intervention determines that military intervention should be used as a last resort, with proportional means, and must pass the just cause threshold, which includes "large scale loss of life" and "large scale 'ethnic cleansing." 5 7 While the report indicates tremendous progress in terms of actions that should be taken to avert human suffering, it also emphasises specific guidelines that inform acceptable use of force. Mockai t is , Peace Operations and Intrastate Conflict: The Sword or the Olive Branch? , 2. 5 5 Quoted in Timothy Findlay, S.I.P.R.I. Research Report No. 12, Challenges for the New Peacekeepers (New Y o r k : Oxford University Press, 1996), 19. 5 6 United Nations, "Report of the Secretary-General Pursuant to-the General Assembly Resolution 53/35: The Fal l of Srebrenica, a/54/549," (1999). in Hazan, Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia, 87. 50 The conflict between the desire to hold the perpetrators of human rights atrocities accountable and the reluctance to risk soldiers in order to do so is fundamental to the failures the I C T Y experienced. This conflict, however, can be overcome, as demonstrated by the ability of the I C T Y to achieve some success in trying key figures in the conflict. The implementation of secret indictments by Arbour served to change the policies of N A T O regarding the arrests of indicted suspects. Because states had agreed to the creation of the I C T Y , this committed them, at least to some degree, to supporting the norm of justice. The argument that these states were unwilling to sacrifice their own soldiers for this norm had been sufficient to excuse them from enforcing the I C T Y . The creation of the secret indictment policy, however, removed this excuse, because N A T O forces would have the strategic advantage of surprising those indicted, inhibiting them from planning a violent retaliation. That more arrests followed demonstrates the continued relevance of norms of justice and accountability, since states were reluctant to openly refuse opportunities to enforce them. Thus, in a process similar to the transnational Socratic method advanced by Richard Price, "whereby c iv i l society's demands on states to publicly justify their position reverse the 58 burden of proof involved in contesting norms," N A T O states changed their policy. Price introduces the notion of the transnational Socratic method as a mechanism used by transnational c iv i l society to promote an international ban on the use of anti-personnel (AP) land mines. According to this method, c iv i l society actors transform the issue of A P land mine use so that proponents of these land mines needed to "publicly defend ...what previously required no justification." 5 9 Arbour knew that the use secret indictments would drastically diminish the possible risk to N A T O soldiers engaging in arrests, as the indicted suspects would not know they were indicted and would not prepare for retaliation if an arrest attempt was made. Furthermore, if N A T O refused to act on the secret indictments, Arbour declared that she would make the indictments public. In this way, in a mechanism similar to 5 7 International Commission on Intervention and State Sovereignty, and International Development Research Centre (Canada), The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), x i i . 5 8 Richard Price, "Reversing the Gun Sights: Transnational C i v i l Society Targets Land Mines," International Organization 52, no. 3 (1998): 617. 5 9 Ibid.: 632. 51 the transnational Socratic method, Arbour transformed the situation so that states that supported the I C T Y would have to justify why they continued to refuse to arrest indicted suspects, since the risk to N A T O soldiers had been removed. The prospect of the embarrassment faced by states that supported the tribunal served to shame them into arresting indicted suspects. In summary, by adopting an approach that considers how the I C T Y fits into the larger normative context, the use of accommodation determined by the logic of consequences and political realties advocated by Snyder and Vinjamuri could be conceived of as a logic of appropriateness in its own right, determined by norms of sovereignty and intervention. The process of negotiating an end to the Bosnian conflict was carried out through a logic of appropriateness, determining appropriate state behaviour when engaged in ending a violent conflict. Actions undertaken by states regarding the Bosnian conflict reflects these notions of appropriate state behaviour. A s discussed above, a legitimate state cannot employ the use of mercenaries as intervention forces, even if this is in the state's interest to do so. Because of the larger normative context that guides conceptions of state identity, sovereignty, and intervention, the use of mercenaries is an unacceptable option for legitimate state behaviour. In this way, state actions in conflict resolution processes are constrained by the confines of appropriate state behaviour and the divide between logics of appropriateness and logics of consequences narrows, since the failure of states "to act appropriately creates consequences in its own right." 6 0 A s states such as Britain, France, and the United States began to determine how norms of justice and accountability could be situated in this new normative context, the I C T Y began to have more success in obtaining indicted suspects through the help of N A T O . The increasing strength of the norm of justice is evidenced by state actions in the Kosovo conflict. The United States pressured the I C T Y for a hasty indictment of Milosevic, rather than attempting to engage him through the method of accommodation. 6 1 However, there is continued difficulty in situating the norms of justice and accountability in the larger ' Thomas, The Ethics of Destruction: Norms and Force in International Relations, 37. 5 1 Hazan, Justice in a Time of War: The True Story Behind the International Criminal Tribunal for the Former Yugoslavia, 113. 52 normative context of sovereignty and intervention. This difficulty is evidenced through the continued absence of the arrest of Karadzic and Mladic , as well as in the beliefs of state leaders such as B i l l Clinton, former President of the United States, who stated that he did not think it was appropriate for N A T O to "invade Belgrade to try to deliver the indictment" of Mi losev ic . 6 2 This belief, grounded in the possible security threats ground troops would face, attests to the continued preference for states to behave according to their interest in refusing to risk the lives of their soldiers than to uphold the norms of justice and accountability. However, despite the fact that Clinton may not have been wil l ing to use N A T O soldiers to arrest Milosevic, his government did not completely abandon their commitment to these norms, as the Clinton government put considerable pressure on the Serbian regime to arrest Milosevic. This strategy eventually prevailed. Even though the norms of justice and accountability embedded in the I C T Y may not have reached the strength envisaged by proponents of such institutions, the influence of these norms can be demonstrated, providing ICTs with the propensity to have some success in contributing to bringing those guilty of crimes against humanity and other war crimes to justice and thus facilitate an enduring peace. Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 673. 53 Chapter 3: the SCSL The Special Court for Sierra Leone (SCSL) is the first treaty-based tribunal that incorporates both international and domestic components in its operation. This hybrid-model of an international criminal tribunal (ICT) has sparked optimism within the literature regarding transitional justice. Proponents of ICTs regard the hybrid court as an example of progress for transitional justice, signifying the international community's willingness to examine the faults of previous tribunals and strive to create an institution better suited to promote justice, accountability, and ultimately, an enduring end to violent conflict. Despite this optimism, however, the functioning of the S C S L has caused some proponents of the use of ICTs to voice their reservations about the willingness of the international community to commit to norms of justice and accountability. They assert that the S C S L faces significant problems that may undermine its operation and ability to facilitate enduring peace in Sierra Leone. These problems, including funding the court through voluntary contributions, the narrow scope of the court's remit, and the short period of operation the U N has granted the court, could very well threaten the functionality of the court, and compromise the peace-building process in Sierra Leone. Proponents believe that these problems stem from the influence of state interest in creating ICTs. Since the states involved in creating the S C S L are largely disinterested in the court, coupled with the notion that Sierra Leone is not of strategic importance to these states, the mandate and implementation of the court reflects this lack of interest. Proponents argue that the functionality of the S C S L is commensurate to the level of the international community's commitment to norms of justice and accountability. The failure of the international community to uphold these norms during peace process in Sierra Leone seems to demonstrate the inability of such norms to influence state behaviour. Furthermore, when the S C S L was created, proponents of transitional justice argue that state interest continued to impede the operation of the tribunal. Sceptics, however, argue that the political realities of the conflict in Sierra Leone required that the international community refrain from acting according to norms of justice and accountability and negotiate an end to the conflict through a process of accommodating the interests of the belligerents, rather than holding them accountable for their actions. This approach prevailed in Sierra Leone, 54 demonstrated by the absence of the creation of an ICT until President Ahmed Tejan Kabbah requested one, despite the nature of the atrocities committed throughout the conflict. Thus, proponents and sceptics see a divide between state interest and norms of justice and accountability, in which exists a constant tension between the two. I argue, however, that a more complete understanding of the process of creating and implementing the S C S L , as well as the likelihood of success for the court, can be accomplished through an analysis of the influence of the larger normative context in which ICTs are situated. The larger normative context of sovereignty and intervention structures and informs notions of state interest and influences the ability of emerging norms of justice and accountability to exert influence. In order to provide such an analysis, I w i l l first provide an overview of the events that occurred during the conflict in Sierra Leone, culminating in the creation of the S C S L . Second, I w i l l examine the proponent and sceptical arguments about the contribution of transitional justice to peace-maintenance and peace-building, focussing on the approach of accommodation. Finally, I describe how the outcomes of the approach of accommodation indicates how this approach is influenced by the larger normative context, and then analyse how this larger normative context comes to define state interest and affects the success of the S C S L . Conflict in Sierra Leone The c iv i l war in Sierra Leone was characterised by low-intensity guerrilla warfare and brutal atrocities inflicted on the civilian population. The conflict was particularly complex, stemming from a history of corruption and patronage politics that led to the creation of a kleptocracy. After being granted independence on 27 Apr i l 1967, Sierra Leone has become an increasingly failing state. Corruption and patronage decreased the government's capacity to provide for the state, resulting in government neglect for state infrastructure. The government of Sierra Leone eventually stopped providing education, medical care, and salaries, leading to the erosion of state legitimacy. Diminishing state legitimacy was coupled with the curse of alluvial diamonds. The simple process involved in mining these diamonds provided easy revenue, and facilitated corruption. These conditions formed the background for the outbreak of violent conflict with the Revolutionary United Front (RUF) attacking in 1991. 55 The RUFInvasion During the 1980s, a group of university students left Sierra Leone, frustrated by the lack of education spending and employment opportunities due government corruption, and embarked on an insurrection training program in Libya . Among these students was the future R U F leader, Foday Sankoh. The c iv i l war in Sierra Leone began in 1991 when the R U F entered into the country from Liberia and captured small border towns and villages. The R U F comprised approximately 100 to 150 troops of former Sierra Leonean university students, Liberian fighters, and mercenaries from Burkina Faso. Sankoh claimed to be motivated by the grievances of the Sierra Leone population, facing increasing hardships in the wake of government opulence.1 He proclaimed that the aims of the R U F were to overthrow the government and to "restore multi-party democracy to Sierra Leone," and that he was not concerned with personal ambitions. 2 Subsequent events, however, quickly disproved these statements. While Sankoh was motivated by the widespread grievances experienced in Sierra Leone, the R U F is considered a "peculiar organisation" that "does not share any of the essential characteristics of ideology, organisation, and discipline which mark revolutionary movements in Af r ica . " 3 The R U F targeted farmers, villagers, and alluvial miners in an attempt to "demonstrate the inability of the Momoh government to protect its citizens." 4 Rather than compelling people to join the movement through the influence of their cause, the R U F "operated by brutal coercion of young men and women forced to join its ranks or be k i l led ." 5 Unlike many other rebel groups, the R U F did not attempt to represent the people of Sierra Leone through the establishment of parallel political institutions or by administering 1 For example, Siaka Stevens, the leader of Sierra Leone from 1968 until his retirement in 1985, hosted the Organisation of African Unity Summit in 1980, an undertaking that involved inflated contracts, mil l ions of dollars in profits for Stevens' supporters, and cost the entire year's budget for Sierra Leone. See J immy D . Kandeh, "Ransoming the State: Elite Origins of Subaltern Terror in Sierra Leone," Review of African Political Economy 26, no. 81 (1999): 351. 2 Paul Richards, Fighting for the Rain Forest: War, Youth, and Resources in Sierra Leone, ed. A l e x de Waal and Stephen El l i s , African Issues (Oxford: James Curry, 2004), 7. 3 Ibrahim Abdul lah , "Bush Path to Destruction: The Origin and Character of the Revolutionary United Front/Sierra Leone," The Journal of Modern African Studies 36, no. 2 (1998): 222. 4 John L . Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy, International Peace Academy Occasional Paper Series (Boulder & London: Lynne Rienner, 2001), 114. 5 John L . Hirsch, "War in Sierra Leone," Survival 43, no. 3 (2001): 150. 56 the areas over which they gained control. 6 The R U F also recruited children and established youth training camps. Chi ld recruits were often "compelled to perpetrate atrocities on families and relatives, making it virtually impossible for them to leave the bush and return home." 7 Throughout the conflict, the tactics of the R U F continued to be characterised by atrocities committed against civilians. A s the R U F invaded, the government of Sierra Leone (GoSL), led by Major General Joseph Momoh, was aiding the government of Liberia in the fight against the rebel group the National Patriotic Front of Liberia (NPFL) . President Momoh allowed the Economic Community of West African States Cease-Fire Monitoring Group ( E C O M O G ) to use Freetown as an assembly point and airbase and also deployed troops from the Sierra Leone Army ( S L A ) to join E C O M O G units. These actions angered Charles Taylor, leader of the N P F L and crony of Sankoh, who retaliated by lending support to the R U F . The continued collaboration between Charles Taylor and the R U F was an integral component of the conflict in Sierra Leone. Momoh was also able to organise a counter-attack against the R U F , recruiting Liberian refugees, as well as adopting the rebel group strategy of recruiting under-age combatants to the S L A . The S L A was able to win back some territory captured by the R U F by September 1991. Discontent in the S L A , however, resulted in an accidental coup of the G o S L . In A p r i l 1992, junior officers from the S L A staged a protest in Freetown, angered by the government's failure to pay their salaries or provide medical care for wounded S L A troops. Momoh feared that the protest was actually a coup attempt, and fled to Guinea. Subsequently, Captain Valentine Strasser, one of the protest organisers, was chosen by the S L A to become head of the National Provisional Ruling Council (NPRC) and effectively the leader of Sierra Leone. During this time, the R U F began attacking and occupying diamond-rich areas in the southeast of Sierra Leone, indicating a move to incorporate strategic economic targets in their tactics. The presence of diamonds transformed the rebellion from one of addressing grievances, to becoming an end in itself. The nature of the diamond trade and the profits made by trading diamonds becomes a reason to engage in and continue the conflict, as such diamond revenue would not be available during times of peace. Thus, the 6 W i l l Reno, "No Peace for Sierra Leone," Review of African Political Economy, no. 84 (2000): 326. 57 state failure of Sierra Leone entailed that the conflict provided better prospects than those available during times of peace.8 The tactic of targeting the diamond mines suggests that the organisers of the R U F "opted for a strategy of quick access to arms in lieu of the longer-term efforts to build popular support and mobilise people under their control ." 9 This strategy reinforces the notion that the conflict shifted from grievance-based motivation to engage in violence to one characterised by greed and the emergence of previously unavailable opportunities. The N P R C , however, was able to launch an offensive against the R U F and the rebels were pushed back into Liberia, where they were able to regroup. In March 1993, the R U F launched an intensified attack on rural villages and the S L A was strengthened with Nigerian troops moved from Monrovia. Determined to defeat the R U F , Strasser opted to enlarge the S L A . In early 1994, the N P R C "released prisoners from jail and dragooned unemployed and uneducated youth from the streets" in order to bolster the S L A . 1 0 The use of prisoners and unemployed, uneducated youth to strengthen the S L A , coupled with the conditions of a failed state, resulted in the creation of soldier/rebels or "sobels." Because of state corruption, soldiers often found that they "could do better by joining the rebels in looting civilians in the countryside." 1 1 A s more of the S L A became sobels, it became harder to distinguish between the S L A and the R U F . In January 1995, the R U F reached Wellington, situated on the outskirts of Freetown, and sparked fear in the N C R P that the rebel group was close to toppling the regime. Despite the decreased differentiation between the rebels and the soldiers, the S L A , relying on the Nigerians, was able to hold off an R U F advance, but "low-intensity guerrilla conflict 7 Hirsch, "War in Sierra Leone," 150. s The notion that conflict provides more opportunities than during times of peace forms the basis o f the greed versus grievance argument advocated by Paul Coll ier , and suggests that states experiencing state failure, coupled with abundance of natural resources, transforms conflicts from a means to an end, to an end in itself, where the goal is to continue conflict in order to maintain the opportunities it provides. See Paul Coll ier , "Doing W e l l out of War: A n Economic Perspective," in Greed and Grievance: Economic Agendas in Civil Wars, ed. Mats Berdal and David M . Malone (Boulder & London: Lynne Rienner, 2000). See also Paul Col l ier et al . , Breaking the Conflict Trap: Civil War and Development Policy (Washington: Wor ld Bank & Oxford University Press, 2003).; Philippe Le B i l l on , "The Poli t ical Ecology of War: Natural Resources and Armed Conflicts," Political Geography 20, no. 5 (2001).; Karen Ballentine, "Beyond Greed and Grievance: Reconsidering the Economic Dynamics of Armed Conflict," in The Political Economy of Armed Conflict: Beyond Greed and Grievance, ed. Karen Ballentine and Jake Sherman (Boulder: Lynne Rienner, 2003). 9 Reno, "No Peace for Sierra Leone," 327. 1 0 Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy, 36. 1 1 Ibid. 58 continued." 1 2 The N C R P appealed to the international community to aid in negotiating an end to the conflict, to which the United Nations (UN) responded by sending Berhanu Dinka as special envoy to help negotiate a settlement. In March, 1995, the increasing collusion between the S L A and the R U F and the unreliability of the S L A , prompted Strasser to employ Executive Outcomes (EO), a private military company, in order to halt the advances of the R U F . The participation of E O forced the retreat of the R U F from the Freetown area and also from the diamond mining areas. A s E O helped the S L A to regain areas under R U F control, the N C R P participated in a conference involving local c iv i l society groups, which resulted in the decision to hold elections in February 1996. However, just before the elections were to take place, Strasser was "briskly ousted in a peaceful internal coup," and Brigadier General Julius Maada Bio succeeded Strasser as the chairman of the N C P R . 1 3 Despite the overthrow of Strasser, elections proceeded as scheduled. While the military government had committed to holding the elections, "many officers and soldiers feared the ballot box because a civilian regime would have to demobilise large parts of the lawless army." 1 4 Fearing the loss of power as a consequence of elections, S L A soldiers tried to disrupt the election. Violence increased as a run-off election was deemed necessary in order to secure a winner with the required fifty-five percent of the vote. In the two weeks between the scheduled election and the run-off, the R U F engaged in atrocities designed to discourage those wil l ing to vote. They attacked villages in the north and "indiscriminately amputated arms and legs of innocent villagers... sending a message to others would lose their limbs i f they used their hands to mark a ballot paper." 1 5 Despite being threatened by atrocities, the elections went ahead, and Ahmed Tejan Kabbah, leader of the Sierra Leone People's Party (SLPP) was elected President. Negotiating Peace Three attempts at peace were embarked upon during the course of the conflict in Sierra Leone. The first attempt began just before the elections took place, when Maada Bio 1 2 Ibid., 37. 1 3 Ibid., 42. 1 4 W i l l i a m Shawcross, Deliver Us from Evil: Peacekeepers, Warlords, and a World of Endless Conflict (New Y o r k & Toronto: Simon & Schuster, 2000), 178. 1 5 Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy, 45. 59 engaged in negotiations with Sankoh in Abidjan. Kabbah continued these negotiations after he was elected president. In November, 1996, Kabbah and Sankoh signed the Abidjan Peace Agreement. The peace agreement called for the withdrawal of E O , the cessation of hostilities, and the transformation of the R U F into a political party through amnesty and power sharing. Despite optimism that the Abidjan agreement heralded the end of the conflict, it quickly fell apart, and the R U F resumed fighting, prompting the arrest of Sankoh in Nigeria where he was accused of purchasing arms. A faction of the S L A joined with the R U F in a coup attempt in May 1997, causing Kabbah to flee to Guinea. The S L A faction formed the Armed Forces Revolutionary Council ( A F R C ) , led by Major Johnny Paul Koroma, and garnered the support of the R U F . The combined groups were then renamed the People's Army. Immediately after the coup, Nigerian and Guinean contingents of E C O M O G arrived to establish control at Hastings and Lungi Airports. In response to the coup and subsequent departure of Kabbah from Sierra Leone, the international community attempted to persuade the A F R C to step down allow Kabbah to return. The international community also wanted to secure the removal of foreigners from the country. In order to meet with the A F R C junta and negotiate the return of Kabbah and constitutional rule to Sierra Lone, the Economic Community of West African States ( E C O W A S ) established the Committee of Four, comprising the foreign ministers of Nigeria, Cote dTvoire, Guinea, and Ghana. When the A F R C / R U F proved reluctant to commit to negotiations, the U N responded by establishing arms embargoes and other sanctions against the junta regime. These actions prompted the start of negotiations in Conakry between Kabbah and the A F R C / R U F , initiating the second attempt at peace. The negotiations ended with the signing of the Conakry Accords in October 1997. The peace agreement called for the restoration of Kabbah to the G o S L , and the disarmament of the A F R C and the R U F . However, the A F R C / R U F delayed disarmament, causing E C O M O G , whose official mandate was extended to include Sierra Leone in August, to prepare for battle with the People's Army. Kabbah also met with representatives from Sandline International, another private military company, in order to assist in the fight against the A F R C / R U F . 1 6 1 6 Sandline International also engaged in arms shipment to the Kabbah regime, despite an arms embargo on Sierra Leone. This action became a source of controversy for the British government, as the creator Sandline 60 During fierce fighting between E C O M O G and the R U F / S L A , Kabbah returned to Sierra Leone in March 1998. Upon Kabbah's return, the G o S L focussed on establishing treason trials, including the trial of Sankoh, in which he was sentenced to death. The U N also established the U N Observer Mission in Sierra Leone ( U N O M S I L ) in July 1998. Despite the trial of Sankoh, the international community, becoming increasingly involved in attempting to secure a lasting end to the conflict, viewed the leader of the R U F as an integral actor in the peace process. The United States in particular became increasingly involved in influencing the meditation process. Jesse Jackson, President B i l l Clinton's special envoy to Africa, travelled to Africa in November 1998, to meet with Charles Taylor and Kabbah. Jackson "urged Kabbah to make concessions to the rebels," encouraging him to reach out to the R U F . 1 7 The meditation process resulted in negotiations between the G o S L and the R U F , resulting in the signing of the Lome Peace Agreement on 7 July, 1999. The agreement incorporated many of the provisions established in the Abidjan Peace Agreement from 1996, including demobilisation and disarmament provisions, the transformation of the R U F into a political party, and power sharing arrangements. The peace agreement also called for a blanket amnesty for the R U F , and provided Sankoh with the government post of chairman of the Commission for the Management of Strategic Resources, National Reconstruction, and Development. Given the failure of the previous peace attempts, the decision to put Sankoh in charge of diamonds seems bizarre, as he now had formal access to diamond revenue and therefore the means to continue the conflict. While Sankoh may not have been motivated by the prospects of diamond revenue at the outset of the conflict, the exploitation of diamonds was an integral component to the continuation of the conflict. 1 8 Another result of the Lome agreement was U N Resolution 1270, in which the United Nations Security Council (UNSC) established the United Nations Mission in Sierra Leone ( U N A M S I L ) , a peacekeeping force that had a mandate incorporating Chapter V I and elements of Chapter VII of the U N charter. The U N also informed their Special Envoy, Francis Okelo, who was involved in the Lome International T i m Spicer, a former member of the British A r m y , acknowledged that the Brit ish government new of the arms shipment, but did not attempt to stop it. See Ibid., 67. 1 7 Ryan L i z z a , "Where Angels Fear to Tread: Sierra Leone, the Last Clinton Betrayal," The New Republic, July 24 2000, 25. 1 8 Hirsch, "War in Sierra Leone," 150. 61 negotiations, to include the caveat that discredited the blanket amnesty provided in the agreement. This caveat asserted that the U N w i l l not recognise an amnesty for "acts of genocide, crimes against humanity, war crimes, and other serious violations of international humanitarian law." 1 9 Despite the optimism incited by the Lome Peace Agreement, the R U F continued its activities of looting, raping, and mutilating civilians, as well as taking peacekeepers hostage. These actions caused the U N to strengthen U N A M S I L , increasing its size to 11,100 troops in February 2000, and to 16,500 in May. The United Kingdom also responded to the continuation of the conflict by sending in six warships, as well as 700 paratroopers to 20 "restore security... and bolster the moral and resolve of the U N peacekeepers." A s the international community was providing additional measures to combat the failing efforts of the peace process, Sankoh was arrested in May, 2000. Documents were found at his 21 residence that indicated that "he continued to exploit diamonds for his own benefit.""1 In June, Kabbah wrote a letter to K o f i Annan, requesting help in establishing a court to prosecute R U F leaders. The U N responded by establishing the S C S L in early 2002. A s the court was being established, hostilities in Sierra Leone finally ceased, signifying a genuine end to the conflict. The SCSL The S C S L is a unique ad hoc tribunal, different from the International Criminal Tribunal for the former Yugoslavia ( ICTY) . The S C S L was established through a bilateral agreement between the U N and the G o S L and is the first tribunal to be created in this way. A s a result of this method of establishment, the S C S L w i l l be a hybrid of both international and domestic components. Judges have been appointed by the mutual consultation of the G o S L and the U N and the court's jurisdiction includes both international and national crimes. The funding of the S C S L is provided by voluntary contributions from the U N . The amnesty provision in the Lome Peace Agreement was a source of difficulty for the creation of the tribunal. However, this was overcome as the U N adopted the position that the amnesty was only provided for domestic Sierra Leone law, not international law, citing the caveat included Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy, 84. 2 0 Ibid., 87. For a more detailed account of the British operation in Sierra Leone, see W i l l i a m Fowler, Operation Barras: The S.A.S. Rescue Mission, Sierra Leone 2000 (London: Orion Publishing Group, 2004). 62 by the U N Special Envoy. The U N extended U N A M S I L ' s mandate in order to provide security for the court. To date, the S C S L has indicted thirteen people, including Charles Taylor. Today Sankoh was also indicted, but his charges were dropped due to his death in 2003. A final fundamental difference between the S C S L and the I C T Y is its mandate. The S C S L does not have Chapter VII enforcement powers due to its treaty-based origins, preventing the court from ordering the surrender of indicted suspects or inducing the compliance of third states with a request of surrender. The Contested Role of Transitional Justice Aware of the problems of the I C T Y and the International Criminal Tribunal for Rwanda (ICTR), proponents consider the hybrid court to be a model of progress for transitional justice. Some proponents of transitional justice regard the S C S L , and the hybrid court model in general, as a "sincere and laudable attempt to improve upon past transitional justice experiences." 2 3 They assert that efforts to address accountability for human rights abuses through domestic trials or purely international tribunals experience problems of legitimacy, capacity-building, and norm penetration. 2 4 Hybrid courts address these problems, providing a better institution to promote transitional justice. According to the hybrid model, foreign judges and prosecutors work alongside local judges and prosecutors, creating "a framework for consultation," as well as "the perception of independence of the judiciary" that enhances the legitimacy of the court among the domestic population. 2 5 The pairing of international judges and prosecutors with local judges and prosecutors results in effective on-the-job training that aides in the capacity-building of the court. Finally, incorporating international and domestic judges within one court provides more opportunities "for the cross-fertilisation of international and domestic norms regarding accountability for mass atrocity." 2 6 This situation results in greater capacity for the court to facilitate the penetration Hirsch, Sierra Leone: Diamonds and the Struggle for Democracy, 89. 2 2 Michae l P. Scharf, "The Special Court for Sierra Leone," ASIL Insights, October 2000. 2 3 C a l l , "Is Transitional Justice Really Just?," 107. 2 4 Laura A . Dickinson, "The Promise of Hybr id Courts," The American Journal of International Law 97, no. 2 (2003): 300. 2 5 Ibid.: 306. 2 6 Ibid.: 307. 63 of international human rights norms into the domestic society, and may even help develop regional human rights norms. While some proponents of justice and accountability look to the S C S L as an indication of the progress of transitional justice, those sceptical of the contributions of the norms of justice and accountability question the functionality of ICTs, including the hybrid model. Sceptics assert that ICTs do not facilitate the promotion of peace and stability because such institutions do not fit into the political realities of violent conflict. A s purported by Jack Snyder and Leslie Vinjamuri, in situations of attempting to end violent conflict and facilitate peace, "choices and actions are shaped by pragmatic bargaining rather than by rule fo l lowing." 2 7 The approach of accountability, seeking to hold the perpetrators of atrocities and human rights abuses accountable for these actions, which is governed by a logic of appropriateness, is easily eschewed for an approach that is determined by a logic of consequences. Furthermore, Snyder and Vinjamuri argue that pursuing an approach of accountability may not be as conducive to lasting peace as proponents suggest, as it may fail to deter further atrocities. 2 8 The Approach of Accommodation Snyder and Vinjamuri argue that the political realities of violent conflict lead to an approach that incorporates pragmatic bargaining with the main actors in the conflict. According to this belief, the situation in Sierra Leone required that actions influenced by the norms of justice and accountability be abandoned in attempts to secure peace through legitimising Sankoh as a partner in peace. Inherent in this argument is that the attempting to uphold an approach of accountability would result in consequences that states are not wi l l ing to risk. According to David J. Francis, a "realistic analysis of the political context of Sierra Leone shows that the situation offered very limited options;" either the continuation of conflict or political compromise 2 9 Given the confines of plausible options, states opted for an approach of accommodation that resulted in political compromise and the subsequent abandonment of the pursuit of justice. During the Lome peace process, the international Snyder and Vinjamuri , "Trials and Errors: Principle and Pragmatism in Strategies of International Justice," 7. 64 community, particularly the United States, followed an approach of accommodation, pressuring the Kabbah government to engage Sankoh in the negotiations. Adapting from Paul R. Will iams and Patricia Taft's notion of coercive appeasement, the approach of accommodation entails that conflict resolution is sought through accommodating the interests of the rebel group, despite the commission of atrocities and human rights abuses. 3 0 The approach adopted by the U.S . was to mainstream Sankoh, an approach substantiated by the belief that " i f you treat Sankoh like a statesman, he ' l l be one." 3 1 Despite the nature of the attacks the R U F were inflicting during the conflict, the Americans pursued their policy of mainstreaming Sankoh. The U . S . Ambassador to Sierra Leone, Joseph Melrose was present during the negotiations of the Lome agreement and pressured Kabbah to accept the terms of the agreement. The efforts to mainstream Sankoh and the inclusion of the blanket amnesty and the assignment of Sankoh to oversee Sierra Leone's diamonds signified the approach of accommodation the U.S . advocated. For the proponents of transitional justice, this approach further entrenched the notion that those involved in conflict can "terrorise [their] way to power." 3 2 The approach of accommodation adopted by western governments appears to signify the unwillingness of these states to adhere to and uphold norms of justice and accountability. Rather than advocating the establishment of an ICT as in the conflict in the former Yugoslavia, western states opted to mainstream Sankoh and offer him amnesty. A s Snyder and Vinjamuri argue, this approach is far more likely to end c iv i l wars than implementing a tribunal to try belligerents for war crimes. However, the failure of the Lome peace agreement indicates that this belief is misguided. Even though American policy during the peace negotiations was to involve Sankoh in the peace process and appease him through power-sharing and amnesty provisions, as well as other concessions, the Lome Peace Agreement did not result in sustained peace. A n analysis of the larger normative context of sovereignty and intervention suggests that this larger normative context influences states' David J . Francis, "Torturous Path to Peace: The Lome Accord and Postwar Peacebuilding in Sierra Leone," Security Dialogue 31, no. 3 (2000): 366. 3 0 Wi l l i ams and Taft, "The Role of Justice in the Former Yugoslavia: Antidote or Placebo for Coercive Appeasement?," 221. 3 1 L i z z a , "Where Angels Fear to Tread: Sierra Leone, the Last Clinton Betrayal," 25. 3 2 Ibid., 27. 65 responses to c iv i l wars. While Snyder and Vinjamuri may be correct in identifying that political realities of violent conflict do have a role in what policies third-party states can engage in, they do not identify how the larger normative context structures these responses. The realities of c iv i l wars do not, in themselves, necessitate third-party mediation characterised by policies of accommodating the belligerents in a conflict; rather, the norms that comprise notions of sovereignty and intervention influence state behaviour such that only certain options become tenable. A n important factor that influences state responses to conflict resolution is the notion of self-interest informed by the norms that comprise the concept of sovereignty. A t the basis of a constructivist account of state identity and acceptable state action is the notion that intersubjective meanings provide the definition a legitimate state and appropriate state action. 3 3 The intersubjective meanings integral to the conceptualisation of a legitimate state and acceptable state action are comprised of values that are reflected in Christian Reus-Smit's notion of the moral purpose of the state, which is an integral component of state identity. 3 4 Since the moral purpose of the state is based on an individualist ontology that privileges the interests of a state's citizenry, the protection of a state's citizens has become a fundamental component of state interest, thus demonstrating the link between state identity and state interest.3 5 A s in the case of the I C T Y , this conceptualisation of state interest identifies the normative basis of identity and demonstrates the complementarity between norms and interest. Because the norms embedded in the moral purpose of the state inform state interest, state action reflects this interest, and thus the norms that complement it. In Sierra Leone, a state's interest of protecting their citizens is demonstrated through the unwillingness of third-party states to intervene militarily or establish an ICT during the peace negotiations and could influence the decision to negotiate a peace agreement through mediation and the offer of amnesty in the absence of the use of force. Another important observation that indicates the influence of norms regarding third-party state action in c iv i l wars is the unwillingness of states to employ mercenaries to intervene. A s David Shearer attests, "for nearly three centuries, the accepted international "' Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations, 156. 3 4 Ibid., 159. 66 norm has been that only nation-states should be permitted to fight wars." 3 b Historically, states have employed mercenaries to participate in violent conflict. This practice has since changed, however, when the rise of nationalism resulted in the belief of "fighting for one's own country rather than commercial interests" and "conscripted armies under the control of the state became the norm." 3 7 A s these ideas gained currency in the international system, the norm inhibiting the use of mercenaries became embedded in the conceptualisations of the behaviour of legitimate states, as evidenced by K o f i Annan's belief that there is no * 38 "distinction between respectable mercenaries and non-respectable mercenaries." While it may not be acceptable for legitimate states to employ the use of mercenaries, there has been an increased use of mercenaries and Private Military Companies (PMCs) by weak or failing states. In Sierra Leone, both the Strasser and Kabbah governments employed P M C s to provide security and engage in the conflict, despite the international norm prohibiting the use of mercenaries. The fact that states such as Sierra Leone do employ mercenaries attests to the constructed nature of state interest. Sierra Leone had been a failing state, with the legitimacy of the G o S L steadily eroding during its short history as an independent state. The decision for the G o S L to employ mercenaries suggests that states experiencing an erosion of legitimacy have different calculations of interest than states that are robust in both their international and domestic legitimacy. In Sierra Leone, the use of P M C s was predicated on domestic security threats that were difficult for the government to overcome given its lack of both military resources and control over the military. While some authors argue that the involvement of E O and Sandline International in Sierra Leone was integral to initiating the peace processes, they also note that the use of such P M C s only facilitate in initiating peace, they cannot guarantee that peace w i l l be sustained. 3 9 The norm prohibiting the use of mercenaries becomes especially salient given recent studies that suggest c ivi l wars are more likely to end successfully when there is a military victory, or the terms of the peace agreement are enforced with credible security commitments provided by a third-party state. In a study conducted by Barbara F. Walter, she concludes Ibid., 156. David Shearer, "Outsourcing War," Foreign Policy Fa l l , no. 112 (1998): 68. Ibid.: 70. Quoted in Ibid.: 68. Ibid.: 80. 67 that there is a "strong correlation between outside security guarantees and successful settlement" of a c iv i l war. 4 0 Such security guarantees incorporate a peacekeeping force that is reinforced by an apparent ability to use force, rather than the more traditional conception of peacekeeping 4 1 This was demonstrated in the Sierra Leone conflict as the war did not end until the R U F was defeated militarily by U N A M S I L and a separate contingent of British troops. Walter's findings counter Snyder and Vinjamuri's argument that the realties of violent conflict necessitate an approach to mediation that incorporates pragmatic bargaining with the parties in a conflict, including the use of amnesty, in order to secure peace. Instead, these findings suggest that the normative basis of state-interest influences the decision to use the accommodation approach, as "such an approach avoids direct intervention and the subsequent political r isks." 4 2 The normative basis of state interest that requires the need to mitigate the risk exposed to a state's own soldiers and the inability to employ mercenaries lead states to opt to accommodate and "engage factions in ceasefires and peace negotiations [which] reflects explicit recognition of the limits of the use of force." 4 3 Furthermore, the accommodation approach "recognises that U N peacekeepers are constrained in the use of force against local groups and that officers of foreign military contingents or their governments are unwilling to commit their troops to combat." 4 4 The norm against the use of mercenaries becomes an important contribution in the nature and use of peacekeeping operations and attests to the influence of norms in structuring plausible options available to states when intervening in c iv i l wars. A s identified above, the conceptualisation of state-interest that incorporates the moral purpose of the state informed by an individualist ontology includes the necessity to contain the risk of harm exposed to a state's soldiers. This normative conception of state-interest, combined with the norm that does not permit the use of mercenaries, constrains state action when intervening in c iv i l wars and contributes to peacekeeping missions that are characterised by restraining the use of Barbara F. Walter, "The Crit ical Barrier to C i v i l War Settlement," International Organization 51, no. 3 (1997): 357. 4 1 Ibid.: 361. 4 2 Shearer, "Outsourcing War," 75. 4 3 W i l l i a m Reno, "The Failure of Peacekeeping in Sierra Leone," Current History 100, no. 646 (2001): 225. 68 force and a low level of Chapter VII mandates. The conceptualisations of appropriate state behaviour, such as limiting the harm exposed to a state's soldiers and the norm against the use of mercenaries, produce consequences states are unwilling to risk if they violate these standards of appropriate behaviour. States may risk losing domestic support if they intervene into a c iv i l conflict and experience casualties, and they risk international condemnation if they employ mercenaries to carry out the task. B y analysing the role of norms in this manner, it becomes apparent how the logic of appropriateness comes to structure the logic of consequences, because the failure to adhere to such standards of appropriate behaviour in itself has consequences. While Snyder and Vinjamuri may posit that realities associated with a logic of consequences provides the framework for state intervention in c iv i l wars, they do not consider how norms may also influence state behaviour. A s is apparent in the situation in Sierra Leone, states do not have the freedom to choose whichever response they deem necessary; rather, options of behaviour are guided by the normative basis of state-interest and the larger normative context. The failure of the Lome agreement also indicates the importance of the role of ideas in shaping the basis of the realities of violent conflict that Snyder and Vinjamuri discuss. Even i f the states that contributed to the Lome peace process, particularly the U.S . , were motivated by the genuine belief that both the R U F and the G o S L would abide by the terms of the Lome agreement and the R U F would come to realise the benefits of evolving into a political party that formed part of a democratic coalition government, such a belief does not entirely reflect the realities of the conflict in Sierra Leone. While it may appear that bargaining with Sankoh and offering him incentives would be conducive to facilitating peace, as Snyder and Vinjamuri contend, dismissing analysis of the normative basis of a peace process results in a missed opportunity to investigate why this peace initiative failed. A n important aspect that Snyder and Vinjamuri's approach fails to consider is the role of the normative conception of legitimacy in the peace process. During the conflict in Sierra Leone, the R U F did not attempt to garner domestic support for their war effort. The rebel group instead targeted civilians in the commission of atrocities and human rights abuses. Part of the reason why the rebels did not attempt to gain domestic support is due to the ability to fund their war efforts through trade in diamonds. Because the presence of diamonds in Sierra Leone provided resources for the rebels they did 69 not have to rely on the "goodwill of local inhabitants or the contributions of their energies or wealth." 4 5 A s a result of these actions undertaken by the rebels, the R U F could not secure domestic legitimacy for their cause and used violence instead as a means to secure their existence. The approach of accommodation adopted during the Lome peace process further legitimised this use of violence, as Sankoh was recognised as an integral figure in the peace negotiations. The use of violence as a means to secure the R U F position in Sierra Leone, however, meant that this existence became untenable during times of peace because the R U F could not allow U N A M S I L peacekeepers "to control diamond-mining areas, nor could it disarm without losing its primary basis of power." 4 6 A s K a l Holsti posits, from this analytic perspective, legitimacy becomes a fundamental component of state strength as this strength "is not measured in military terms... [but] rather, in the capacity of the state to command loyalty - the right to rule." 4 7 This conceptualisation of legitimacy is based on the belief of the domestic population that their government has the "right to rule", which incorporates an ideational basis. Because the R U F had no support, no legitimacy to rule, from the local population, their only basis of power was the use of violence and resulted in the failure of the three peace agreements embarked on during the course of the conflict. The SCSL and the Influence of the Larger Normative Context Tension between Accountability and State Interest The constructivist argument that the influence of norms on state action can work to re-constitute state identity, and therefore promote the entrenchment of emerging norms and subsequent state behaviour is manifested to some degree in the creation of the S C S L . While the international community initially did not act according to norms of justice and accountability when negotiating the Lome agreement, these norms did exert some influence. This influence is manifested in the inclusion of the U N provision in the Lome agreement that refuted the blanket amnesty. In addition to this, the U N , and more importantly the U N S C , did not deny the G o S L the creation of an ICT when Kabbah requested one. However, the ^ Ibid.: 222. 4 6 Ibid. 4 7 K . J. Holst i , The State, War, and the State of War (Cambridge ; N e w Y o r k , N . Y . , U S A : Cambridge University Press, 1996), 82. 70 larger normative context that influenced the peace negotiations, also exerted influence in the creation of the court, and contribute to the ability of the court to facilitate enduring peace. Addressing the problems of the previous ICTs implemented by the U N , the I C T Y and the International Criminal Tribunal for Rwanda (ICTR), the S C S L is thought of as an attempt to overcome these problems to create a better institution. In particular, the U N wanted to avoid the problems of an expanding budget and of the long duration of the tribunal proceedings. The S C S L has a smaller budget, a tighter mandate, and a limited period of operation. However, while the S C S L may be an attempt to overcome the problems of the I C T Y and ICTR, the court is facing problems of its own. The fact that the budget for the S C S L is to come from voluntary contributions from U N member states may pose serious difficulties for the court, particularly if the court is not able to secure enough funds for its operations. K o f i Annan initially requested that the court be funded through member assessments, the funding procedure for the I C T Y and the ICTR. However, the U N S C countered this position by proposing voluntary contributions, and this position ultimately prevailed. The U N S C also insisted on a focus of prosecution narrowed to those with the "greatest responsibility" since voluntary contributions entailed very limited resources, and thus the court "had to be given a small window of operation." 4 8 The problem with providing the court with such a narrow remit is that it may not be able to reach everyone that bears great responsibility for committing atrocities. The need to for the S C S L to acquire jurisdiction over such people is an important aspect in the goals of reconciliation and facilitating enduring peace integral to the concept of transitional justice. A s Lansana Gberie emphasises, "many of the acts of violence were committed by lesser personnel." 4 9 The author goes on to report that some of the people who fall outside of the court's jurisdiction have now been incorporated into the newly trained S L A , citing the example of Alhaji Baryoh, who is believed to have murdered approximately 500 people in the conflict, but now is " in the naval wing of the Sierra Leone mili tary." 5 0 Another result of the limited resources and the desire to pare down the scale of the court compared to the I C T Y and the I C T R is Beth K . Dougherty, "Right-Sizing International Cr iminal Justice: The Hybr id Experiment at the Special Court for Sierra Leone," International Affairs 80, no. 2 (2004): 321. 4 9 Lansana Gberie, "Briefing: The Special Court of Sierra Leone," African Affairs 102 (2003): 646. 71 provision of three years for the length of time the court is expected to be in operation. Although some proponents may argue that the hybrid model of the S C S L is a laudable method of overcoming problems of previous tribunals, the problems the court faces prompts proponents to assert that the court amounts to "justice on the cheap." 5 1 Another fundamental problem facing the S C S L is the lack of Chapter VII enforcement powers. Because the court is a "treaty-based, sui generis court established by an agreement between the United Nations and Sierra Leone, the Special Court w i l l lack the power of ad hoc Tribunals to assert primacy over national courts of third states and to order the surrender of accused persons located therein." 5 2 The lack of Chapter VI I enforcement powers entails that the court may face significant problems in its operation and could CO ultimately compromise its effectiveness. As Micaela Frul l i asserts, "a large number of criminals could flee the country and find shelter in neighbouring states, making a mockery of the Tribunal ." 5 4 However, the most pressing problem for the S C S L regarding the lack of Chapter VII enforcement powers concerns Charles Taylor. Because the R U F received significant support from Liberia, the inability to order third states to comply with the court may inhibit the process of transitional justice, particularly given the collusion between Charles Taylor and the R U F . The U N S C issued a report in December 2000 explicitly accusing Taylor of being involved in instigating conflict in Sierra Leone. When the S C S L issued Taylor's indictment, African states refused to hand him over to the court. The death of Sankoh in 2003, and other prominent figures in the conflict, entails that the inability to get Taylor to face trial may result in an "existential crisis for the Court ." 5 5 Despite optimism about the potential of the hybrid court model, the problems the S C S L faces has resulted in growing cynicism about international commitment to transitional justice. The dispute between the U N S C and the U N Secretary General about integral aspects Ibid.: 647. 5 1 Dougherty, "Right-Sizing International Cr iminal Justice: The Hybr id Experiment at the Special Court for Sierra Leone," 312. 5 2 Stuart Beresford and A . S . Mul ler , "The Special Court for Sierra Leone: A n Initial Comment," Leiden Journal of International Law 14 (2001): 636. 5 3 Dougherty, "Right-Sizing International Criminal Justice: The Hybr id Experiment at the Special Court for Sierra Leone," 327. 5 4 Micae la Fru l l i , "The Special Court for Sierra Leone: Some Preliminary Comments," European Journal of International Law 11, no. 4 (2000): 862. 5 5 Gberie, "Briefing: The Special Court of Sierra Leone," 646. 72 of the S C S L , such as the funding of the court, had led proponents to conclude that the international community is not fully committed to international criminal justice. 5 6 Rather than creating a court with the capacity to carry out its mandate to facilitate peace and reconciliation, states chose to fulfil their need to maintain a smaller, narrower, and less costly court, suggesting that state interest reigns over commitments to justice. The decision to create the S C S L to be as small and narrow as possible also suggests that states must have strong enough strategic interests in the region or country in order to fully commit to norms of justice. If the tribunal is not in a state's interest, then little w i l l be accomplished. However, states cannot deny the influence of human rights norms and norms of justice, so they look to creating tribunals as an easy way to pay homage to such norms. Thus, states find that "establishing a tribunal system appealing because it provides an economically and politically inexpensive means of responding to demands for international action [and] enables states to commit at a level commensurate with their strategic interest in the region involved." 5 7 Giving Meaning to State Interest: The Larger Normative Context The factor of self-interest identified in the peace process and in the constraints placed on the S C S L also influences the success the court w i l l experience. The provisions provided to the court, such as a budget to be fulfilled by voluntary contributions, its narrow scope, and the limited time-frame, w i l l be important factors in determining how successfully the court can uphold accountability for atrocities, as well as facilitate reconciliation and sustained peace. The acquiescence of the existence and influence of norms of justice and accountability, even by those sceptical about the capabilities of ICTs, however, suggests that there may be more to the situation that just tension between self-interest and norms. The notion that state identity is bound in a mutually-constituted culture, as well as larger frameworks of meta-values, indicates that norms are more integral to the genesis of behaviour. Rather than suggesting that states look to norms as mechanisms that impede acting according to self-interest, one should look at how norms themselves constitute self-5 6 Dougherty, "Right-Sizing International Cr iminal Justice: The Hybr id Experiment at the Special Court for Sierra Leone," 328. 5 7 Rudolph, "Constructing an Atrocities Regime: The Politics of War Crimes Tribunals," 683. 73 interest, and how other norms, such as justice and accountability, fit into the larger normative context that informs state identity, interest, and action. The self-interest that causes reservations in proponents about the willingness of the international community to commit to norms of justice and accountability, and causes sceptics to determine that such courts are not useful in conflict resolution, is given meaning through the norms that comprise state-identity. These norms are reflected in state action, as they provide the framework for legitimate and appropriate state behaviour for states with a given identity. A s described on the theory chapter of this thesis, an integral aspect of state CO identity is comprised in the concept of the moral purpose of the state. In the modern state system, the moral purpose of the states is partly defined by Christian Reus-Smit's notion of an individualist ontology. The larger normative context of sovereignty and state identity, defined by the moral purpose of the state, informs the notion of state interest. Given the conceptualisation of state identity as the guarantor of individual liberties and representative of the people that comprise the state, then these people determine state interest to some extent. If an issue resonates with the body politic, norms of state sovereignty entail that it becomes part of a state's interest to act in accordance with these issues. The relevance of the body politic in formulating state interest is part of the current conceptualisation of the moral purpose of the state that is fundamental to the larger normative context that influences state action. In other eras, the moral purpose of the state reflected different factors that comprised its conceptualisation. Consider, for instance, the different moral purposes of the state in the age of empire and slavery; during this era, Britain would hardly have hesitated to conquer Sierra Leone in its "national interests." This notion of the moral purpose of the state is manifested in Sierra Leone through the creation of a court that is influenced by norms of justice and accountability, but is also impeded by the larger normative context of state sovereignty. The situation in Sierra Leone did not have a large constituency in the western countries involved in the peace process and in the creation of the court. A s Ryan Lizza reports, the events in Sierra Leone rarely made the American press. 5 9 This notion is furthered by the argument Gary Jonathan Bass makes 5 8 Reus-Smit, The Moral Purpose of the State: Culture, Social Identity, and Institutional Rationality in International Relations, 31. 5 9 L i z z a , "Where Angels Fear to Tread: Sierra Leone, the Last Clinton Betrayal." 74 that emphasises the requirement of mass outrage in order to implement a functional tribunal. 6 0 Following this argument, a strong w i l l among the body politic influences the creation of a tribunal. In Sierra Leone, the neglect of the body politic to adopt the issue of the creation of a tribunal for Sierra Leone resulted in the determination of the state that it was not in their interest to create a tribunal during the peace process. Furthermore, this also influenced the provisions of the S C S L when it was created, because it had not become a point of interest among the body politic. The lack of a Chapter VII mandate given to the S C S L is another fundamental problem of the court that proponents of transitional justice deem stems from failure of the international community to commit to the court. The court's registrar, Robert Vincent determined that the failure to provide the S C S L with a Chapter VII mandate revealed that the court had a "pathetic lack of international clout." 6 1 Some proponents of transitional justice assert that the failure to provide the court with a Chapter VII mandate resulted from the unwillingness to risk the possibility of indicting a leader of a West African state, which is precisely what occurred with the indictment of Charles Taylor . 6 2 Again, these proponents argue that the unwillingness of the international community stems from state interest and an approach of accommodation. However, the norms that comprise state sovereignty give meaning to the context and inform appropriate state behaviour. A s is usual when engaging in conflict resolution, the international community defected to an approach of accommodation. The indictment of Charles Taylor was delivered as he was meeting in Ghana for peace negotiations regarding the c iv i l war in Liberia. The S C S L ' s request that the arrest of Charles Taylor embarrassed the Ghanaian government and caused the African leaders and American officials involved in the negotiations to concede that the court was attempting to "jeopardise an important peace initiative intended to end Liberia's carnage." 6 3 Ignoring the indictment, the Ghanaian government sent Taylor to Monrovia, and he resigned as President of Liberia and went into exile in Nigeria. 1 Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals, 32. 6 1 Gberie, "Briefing: The Special Court of Sierra Leone," 645. 6 2 Dougherty, "Right-Sizing International Cr iminal Justice: The Hybr id Experiment at the Special Court for Sierra Leone," 321. 6 3 Gberie, "Briefing: The Special Court of Sierra Leone," 645. 75 While a claim can be made that the decision to ignore the indictment of Taylor may be due to state interest and the possibility of backlash from Taylor's forces, it is also apparent that the approach of accommodation is governed by its own logic of appropriateness. Rules and norms of appropriate behaviour define state action when facilitating conflict resolution. The belief that a nation's own citizens should not be sacrificed for another state's war is one aspect that informs the appropriate actions third-party states may engage in when participating in conflict resolution. Because the international community was in the midst of attempting to negotiate an end to intrastate conflict in Liberia, the approach of accommodation mitigated the possibility of enforcing the indictment of Taylor, even though his resignation and subsequent exile to Nigeria indicates that he felt threatened by the indictment. Thus, while these actions may be indicative of state interest, the larger normative context of sovereignty and state identity give meaning to this interest and the way in which emerging norms of justice and accountability fit into this larger normative context influences its success. 76 Conclusion The main purpose of this thesis was to demonstrate the importance of the influence of the larger normative context on the implementation and functioning of ICTs. The case studies indicate that the context in which decisions to create ICTs are made is of crucial importance to understanding the accomplishments of these tribunals and suggest that ethics and norms need not be divorced from conceptualisations of state interest. Thus, rather than positing a mutually exclusive dichotomy between norms and interest, my analysis adopts a constructivist approach in which norms constitute interest. Since the literature regarding the use of ICTs regards norms and interest as independent variables, the constructivist perspective provides a more complete understanding of the functioning of ICTs. Comparing the Case Studies Similarities There are two important similarities between the case studies of the I C T Y and the S C S L . The first similarity is the inability for an approach of accommodation involving pragmatic bargaining and the offer of incentives to achieve sustained peace and the second similarity is the influence of the larger normative context, in which norms constitute state interest. Both case studies demonstrate that the sceptical assertion that conflict resolution should be guided by pragmatic bargaining and an appeal to the interests of the belligerents did not actually result in the resolution of the conflicts. To be sure, the Dayton Accords resulted in the cessation of the conflict between Croatia, Serbia, and Bosnia, but it did not deter further conflict in Serbia. However, sceptics may argue that the conflict in Kosovo was in part due to the notion that the indictment of Milosevic gave him nothing to lose, so he opted to engage in further conflict. While this argument may provide some explanation as to why the Kosovo conflict occurred, the analysis of the I C T Y case study also suggests that the approach of accommodating the belligerents in a conflict actually serves to legitimise the use of violence. Furthermore, the complete failure of this approach on the Sierra Leone conflict indicates that accommodation and pragmatic bargaining is not conducive to facilitating conflict resolution. A fundamental argument put forth by sceptics to demonstrate the 77 unsuitability of ICTs is the apparent lack of deterrent capacity of tribunals. However, the approach adopted by the international community that adhered to such sceptical arguments seemed to result in the legitimising further use of violence by accommodating the actors in the conflicts. Subsequently, violence continued in Kosovo and conflict was not resolved in Sierra Leone. The second similarity is that both the I C T Y and the S C S L case studies demonstrate that normative conceptions of state interest constructed appropriate behaviour in conflict resolution. The normative basis of sovereignty and the use of force provided a framework of action and structured the situation such that only certain options of behaviour were viable. In both the Bosnian conflict and the conflict in Sierra Leone, conceptions of sovereignty constitute notions of state interest, which in these cases was to secure the safety of a state's own soldiers. This conceptualisation reflects the standpoint of holistic constructivism, in which the manifestation of state interest is informed by domestic sources. The larger normative context also includes norms regarding the use of force and contributes to the framework of acceptable action and to the insecurity of troops. Thus, David Francis' conclusion that the only options available in Sierra Leone were the continuation of conflict or the pursuit of a political compromise is also true for the Bosnian conflict. 1 Important in this assessment is that the larger normative framework structures third-party action in violent conflicts to provide the conception that these situations only offer these two options. Furthermore, the failure of the Lome peace agreement in Sierra Leone suggests that the realities of violent conflict comprise the need to foster normative conceptions of legitimacy, indicating that the realities of conflict involve elements that go beyond material considerations. Thus, the international community was faced with similar dilemmas in both Bosnia and Sierra Leone: how to enforce a tribunal when this risks the security of a state's soldiers and thus runs counter to state interest? Since the larger normative context is comprised of norms that are internalised by states to a greater degree than emerging norms of justice and accountability embedded in ICTs, the norms of justice and accountability must struggle to fit in with norms of sovereignty and intervention. The 1 Francis, "Torturous Path to Peace: The Lome Accord and Postwar Peacebuilding in Sierra Leone," 366. 78 interplay between the two sets of norms is the integral component that influences the success of ICTs. Differences The cases of the I C T Y and the S C S L differ in the apparent commitment of the international community to norms of justice and accountability. States were wi l l ing to create the I C T Y in the midst of the Bosnian conflict, but were unwilling to do the same during the conflict in Sierra Leone, despite documented appalling human rights abuses. Furthermore, the fact that states engaging in the Lome peace negotiation process did not consider the creation of a tribunal attests to lack of strength of the norms of justice and accountability as compared to the Bosnian conflict. The unwillingness of the international community to establish an ICT for the conflict in Sierra Leone, however, should not be considered to demonstrate the notion that interest, conceived as separate from norms, prevailed. The fact that the U N felt compelled to counter the condition of the blanket amnesty provision in the Lome agreement, and the eventual creation of the S C S L indicates that norms of justice and accountability did exert some influence. This influence, however, was subject to the larger normative context. Conclusions The dissonance between the proponent and sceptic literature is the role of norms and of state interest. The corollary of this dissonance is the tension, and competition, between norms and interest. The problem with this interpretation is that the analysis of ICTs only goes as far as either positing the virtue and benefits of norms over state interest, or the necessity of acting according to interest. A s a result, both proponents and sceptics separate norms from interest and interest is assumed rather than analysed. The problem of assuming the content of state interest is that a more complete understanding of the confines of state action is not achieved, as confirmed by the discussion of the problem of using mercenaries. A n important aspect of the separation of norms and interest is the type of norms contributing to the creation of ICTs. Both the proponent and sceptical literature regard the norms of justice and accountability that motivate the creation of ICTs as ethical norms and highlight the difficulty of the choosing ethics over political realities and acting out of interest. 79 However, both the proponents and the sceptics are wrong to purport that ethical norms do not matter as much as state interest in implementing ICTs. The study of the I C T Y and the S C S L demonstrate that ethical norms do matter; states are influenced by these norms. However, the problem is that, as Martha Finnemore asserts, norms do not singularly exert influence, but exist in an interdependent and highly structured social context.2 In the presence of this structured normative context, ethics are not automatically divorced from interest, because ethical norms can either exert enough influence to cause action, even i f this action does not seem to be in the actor's interest, or these norms can come to constitute interest itself. The reluctance of the states that created the I C T Y and the S C S L to enforce these tribunals does not necessarily indicate the failure of norms as opposed to interests, but rather the competition between various norms guiding state actions. A s Ward Thomas notes, "moral principles are fundamentally important to understanding norms governing the use of force, although they are seldom applied in their unadulterated form." 3 The influence of the larger normative context on emerging norms especially highlights the importance of concepts such as framing and grafting identified by constructivist scholars. In their discussion about transnational advocacy networks ( T A N S ) , Margaret Keck and Kathryn Sikkink have demonstrated the importance of framing an issue in order for norm entrepreneurs to more successfully promote norm diffusion. They have noted that "some issues can be framed more easily than others."4 The concept of framing is important to the success of campaigns to influence state action on a specific issue because the norms advocated in these campaigns are more easily adopted if they resonate with norms already established in the accepted larger normative context. This notion is furthered by the concept of grafting, in which involves a "mix of genealogical heritage and conscious manipulation involved in such normative rooting and branching." 5 According to this concept, norms are grafted to resonate with more established norms to ensure the acceptance and diffusion of the newer norms promoted by the norm entrepreneurs. 2 Finnemore, The Purpose of Intervention: Changing Beliefs About the Use of Force, 57. 3 Thomas, The Ethics of Destruction: Norms and Force in International Relations, 3. 4 Margaret E . Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca, N . Y . : Cornel l University Press, 1998), 27. 5 Price, "Reversing the Gun Sights: Transnational C i v i l Society Targets Land Mines," 628. 80 Grafting emerging norms to those that are more established works to increase the chances of norm diffusion because existent norms offer a realm of possibility for this diffusion. The growing attention of, and adherence to, human rights norms offers just such a realm of possibility for adherence to norms of justice and accountability, since these norms seek to address the occurrence of extrajudicial human rights abuses. However, this is not a perfect process as exemplified by the case studies of the I C T Y and the S C S L . This study demonstrates the importance of bridging the literature between proponents of the use of ICTs as mechanism of transitional justice and those sceptical of the use of ICTs in general. The benefit in bridging the literature is that it can be shown that norms and interest are not necessarily separate. Indeed, interest is often manifested through adherence to certain norms. This study also reveals that it is not a tension between ethical norms and self-interest that influences the success of ICTs, but the competition between norms. While these revelations may contribute to a more complete understanding of the functioning of ICTs and the failures and successes tribunals have experienced, it leaves open for future study prescriptions based on these findings. While change in the international system has been documented as difficult to achieve, an understanding of the influence various norms have on the creation and implementation of ICTs can help in achieving changes necessary to ensure that these institutions become more successful. The creation of the International Criminal Court (ICC), however, may render the study into prescriptions for the future operation of ICTs a moot point, since it is unlikely that as hoc tribunals w i l l be utilised as they were in the past in the wake of the creation of a permanent international court devoted to trying those accused of crimes against humanity. However, the creation of the I C C was motivated by notions of justice and accountability, norms that influenced the creation of ICTs. While analysis into the functioning of the I C C w i l l likely uncover additional elements not included in this study, the findings of this thesis may also be relevant to the operation of the I C C in that the normative context which helps define state interest w i l l influence state action regarding the I C C . 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