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THE FORA FOR JUSTICE
ACCOUNTABILITY OR ACCOUNTABILITY IN THE NAME
OF PEACEBUILDING AND RECONCILIATION?
It has been a common understanding that the international justice system has
its roots in the 1474 Breisach trial, conducted in the aftermath of the atrocities
committed during the siege of the city of Breisach in the Upper Rhine region.
The punishment for committing “crimes against the laws of nature and God”
was imposed by the ad hoc tribunal composed of 26 judges from various regional
city-states on Peter Von Hagenbach, Burgundy’s Alsatian military commander.*
This historical precedent signaled that bringing preparators of grave breaches
amounting to international crimes to prosecution and punishment would become
a key mandate of the modern, twenty-century established international courts and
tribunals. Moreover, the unprecedented atrocities committed during World War II
paved the way for establishing the duality of the state and individual responsibility
for international crimes. The Nuremberg judgment and the Genocide Convention
are cases at the point.
However, the late1990s and the early 2000s attempts to connect international
trials with restoring peace and achieving reconciliation between divided nations or
ethnic groups have shown that the modern international criminal justice system
has become more ambitious than the Nuremberg trial, on whose legacy it was
built. Along with the legal, the non-legal purposes prominently figured in the
missions of the International Tribunal for the Former Yugoslavia (ICTY), the
International Tribunal for Rwanda (ICTR), and Special Court for Sierra Leone.
What was put in their mandates, now mostly over, was not retribution itself, but
an aim of holding individuals to account in an effort to promote peacebuilding
and reconciliation.®
There is a further twist here. Even though the ICTY and ICTR became
revolutionary milestones of the international criminal justice, which speeded up
the establishment of the International Criminal Court (ICC), the Rome Statute
spells out that the ICC is established to secure the punishment for the most serious
crimes of concern to the international community, to put an end to impunity for
the perpetrators of these crimes and thus to contribute to the prevention of such
3 Gregory S. Gordon, The Trial of Peter von Hagenbach: Reconciling History, Historiography
and International Criminal Law, in Kevin Heller - Gerry Simpson (ed.), The Hidden
Histories of War Crimes Trials, Oxford, OUP, 2013, 13-49.
4 The Judgment is rendered on 1 October 1946; The UN Convention on the Prevention and
Punishment of the Crime of Genocide was approved by General Assembly Resolution 260
A (III) of 9 December 1948; it entered into force on 12 January 1951.
5 Ruti Teitel, The Law and Politics of Contemporary Transitional Justice, Cornell International
Law Journal 38 (2005), 837-862, 857.
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