Is the Prosecution of War Crimes Just and Effective? Rethinking the Lessons from Sociology and Psychology

Should perpetrators of genocide, violent acts against civilians during war, or other massive violations of core human rights be punished? International criminal law (ICL) answers this question affirmatively, asserting that the punishment of such atrocities is just and that their effective prosecution can (and should) contribute to the prevention of such future acts. Moreover, an increasing attempt has been made in the international and domestic arenas to act in accordance with these assertions of ICL through the prosecution of war crimes. During the last two decades the role of ICL has become gradually more significant, and the fall of the Soviet bloc has lifted the main political barriers that had prevented the implementation of ICL. Furthermore, the atrocities of the 1990s (mainly in the former Yugoslavia and Rwanda) have reaffirmed the post-World War II realization that means directed against states (such as reprisals and countermeasures) are insufficient to prevent those atrocities that ICL is designed to prevent and punish. These atrocities have also strengthened the moral conviction that perpetrators of such acts must be punished. Thus, ICL has been increasingly applied through the use of international tribunals that directly apply the norms of ICL, as well as through domestic prosecution of acts that constitute war crimes. These attempts on the international and domestic levels are strongly connected. Accordingly, it can be argued that an international penal legal system currently exists (ICL) and that the different international and domestic forums that partake in war crimes prosecution are simply different means that this system has to enforce its norms. Alternatively, it can be argued that each domestic enforcement mechanism should be viewed as a “branch” within the relevant domestic system, and thus the reference to ICL as a legal system should only be made in the context of war crimes prosecution made by international tribunals. This Article will not attempt to resolve this dispute and thus will use the dual terms “ICL” and “war crimes prosecution.” The Article intends to focus on attempting to justify a phenomenon that cannot be disputed: the considerable strength that direct and indirect enforcement of ICL norms through war crimes prosecution has gained in recent decades. The prosecution of war crimes is not without its critics. Much of the criticism of ICL and war crimes prosecution’s premises of just punishment and effective crime prevention is based on the findings of sociological and psychological research. As of yet, proponents of ICL and war crimes prosecution have failed to supply a sufficient response to this criticism. This Article attempts to fill this void.