Victor Peskin. International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation. Cambridge: Cambridge University Press, 2008. xxi + 272 pp. $85.00 (cloth), ISBN 978-0-521-87230-0.

Reviewed by Heidi Nichols Haddad (University of California, Irvine)
Published on H-Human-Rights (May, 2009)
Commissioned by Rebecca K. Root (Ramapo College of New Jersey)

The Politics of State Cooperation with International Criminal Tribunals

With this book, Victor Peskin explores the fundamental yet understudied issue of cooperation between international criminal tribunals and national governments over prosecution of war crimes suspects that are members of the dominant ethnic, political, or national groups of the state.  Through in-depth, comparative case studies of the respective relationships between Bosnia, Croatia, and Rwanda and the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), Peskin examines why state cooperation with international tribunals has varied both within and across these states.  Peskin’s timely exploration of the issues surrounding cooperation between national governments and international criminal tribunals is crucially important because the fulfillment of the tribunal mandate hinges on the cooperation of states to arrest suspects, transfer witnesses, and provide access to government documents.

In chapter 1, Peskin describes “trials of cooperation” or “virtual trials” as behind-the-scenes prosecution of the state by the tribunal--namely, the chief prosecutor--for failure to provide cooperation as designated by international law.  Peskin contends that the outcomes of these trials depend on the successful diplomatic efforts of the chief prosecutor of the tribunal (including successfully generating and utilizing the soft power of the tribunal), the domestic political factors of the target state, and the intervention of the international community.

One of Peskin’s central arguments is that the outcomes of the trials of cooperation depend on the ability of the chief prosecutor to engender and employ the soft power of the tribunal.  This soft power derives from its legitimacy as an international and independent instrument of justice.  For Peskin, utilizing this soft power means shaming the state for noncompliance to the international community and international media.  In addition to the shaming for noncompliance or noncooperation, the tribunal can also utilize more conciliatory approaches, such as postponing indictments, sealing indictments, or timing indictments, to mitigate domestic political backlash.  In this way, the tribunal and the chief prosecutor become actively involved in political negotiation and strategy in order to best utilize the leverage of the tribunal to enact state cooperation.  For Peskin, the stark differences in state cooperation between the ICTY and the ICTR are largely explained by the ability of the ICTY to more successfully generate and utilize its soft power vis-à-vis the Serbian and Croatian governments.  For the ICTR, the administrative shortcomings undermined and denigrated the legitimacy of the tribunal, which limited its soft power and ability to withstand and rebut the counter-shaming of the Rwandan government.  The limited soft power of the ICTR was also coupled with the increased soft power of the Rwandan Patriotic Front-led government because of the victim status of the Tutsi in the genocidal narrative.

In addition to discussing the strategizing of the chief prosecutor, Peskin contends that domestic political factors of the target states also affect the outcomes of the trials of cooperation.  Peskin repeatedly emphasizes that oftentimes peace and justice are contradictory in that forcing a noncompliant government to arrest a popular nationalist figure, such as Slobodan Milosevic, can undermine political stability and democratic transition.  Therefore, Peskin asserts that the domestic politics of the target state--the stability of the governing coalition, current leaders, and populist nationalist sentiment--can affect the feasibility and political will of states to cooperate with the tribunal.  As Peskin illustrates, the post-Franjo Tudjman democratic government of Croatia was more cooperative than the previous government, but was still reluctant to fully cooperate with regard to the Norac and Gotovina indictments because of the fear of national backlash.

According to Peskin, the intervention of the international community can also shape the outcomes of the trials of cooperation.  As already described, the international community and media was the recipient audience of the tribunal shaming and state counter-shaming.  This was the case because large state incentives, such as EU membership, or financial assistance rested on state cooperation with the tribunal.  These large incentives were often the decisive factor in inducing state cooperation on particularly difficult issues.  As Peskin illustrates, EU membership talks with Croatia rested on the Zagreb government cooperating with the ICTY on finding and arresting General Ante Gotovina, which Zagreb was previously unwilling to do.  While Peskin argues that the intervention and incentives of the international community are instrumental in the outcomes of the trials of cooperation, he also acknowledges that there is no guarantee that the international community will force the hand of the states on the issue of cooperation and tie the incentives to direct action.  The international community often prioritizes peace and political stability over justice, or it may find the counter-shaming of the state more persuasive as with the ICTR because of the tribunal failings and the collective guilt over inaction during the genocide.

With this book, Peskin provides a valuable contribution to the literature by bringing forth a previously understudied dimension of international criminal tribunals.  State cooperation is critical to the successful functioning of international criminal tribunals, but it is often assumed.  This obscures the political maneuverings of tribunals and states over cooperation and ultimately the character of justice itself.  In particular, Peskin asserts that one unique aspect of the ICTY and the ICTR (as opposed to the trials of Nuremberg and Tokyo) was their neutrality and mandate to prosecute crimes on all sides of conflict in order to avoid victor’s justice.  However, without state cooperation for suspects of the dominant ethnic, political, or national groups, the tribunal cannot fulfill this aspect of its mandate, which results in impunity for some and unequal justice.

In exploring this issue of cooperation, Peskin deftly articulates the important actors and relational dynamics between them.  However, Peskin’s description of these actors, mechanisms, and dynamics could have been laid out in a more systematic format.  For instance, Peskin’s use of the analogy of the trials of cooperation suggests that the intervention of the international community was the most important determinant of cooperation by analogizing them as judges of these virtual trials.  Yet elsewhere Peskin emphasizes the creation and utilization of the soft power of the tribunals and the direct negotiations between the tribunal and the state.  This leaves unanswered questions about which of the three factors Peskin identifies--tribunal soft power, domestic politics, or international intervention--is considered to carry the greatest weight in assessing cooperation between national governments and international criminal tribunals.  Regardless, while greater clarity could be brought to this issue, Peskin nonetheless makes a great contribution to the existing literature on international criminal tribunals, and this book is highly recommended to those interested in transitional justice, international courts, and international institutions. 

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Citation: Heidi Nichols Haddad. Review of Peskin, Victor, International Justice in Rwanda and the Balkans: Virtual Trials and the Struggle for State Cooperation. H-Human-Rights, H-Net Reviews. May, 2009.
URL: http://www.h-net.org/reviews/showrev.php?id=24704

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