Legal Responses to Genocide and Other Massive Violations of Human Rights

What can the enlightened sectors of the international community do to prevent and halt the proliferation of genocides and massive human rights violations around the planet? We evade the obvious, albeit costliest answer—to arrest them before, or at least while they are happening, by any means necessary: to stop them by stopping them. Instead, we focus on actions after the fact. One method, which is particularly favored is to create courts to try the perpetrators of atrocities. Indeed, in the course and the wake of the atrocities committed in Cambodia, southern Sudan, the former Yugoslavia, Haiti, Rwanda, Burundi, Zaire—the list grows relentlessly—many in the international community call for the creation of ad hoc or standing international criminal courts to deal with the gravest of international legal delicts. Courts are indispensable institutions in many domestic criminal and civil systems, and any polity, no matter how structured, must construct mechanisms of varying degrees of institutionalization to apply the law to concrete cases. But lest we fall victim to a judicial romanticism in which we imagine that merely by creating entities we call “courts” we have prevented or solved major problems, we should review the fundamental goals that institutions designed to protect our public order seek to fulfill. National legal systems allocate different responsibilities to criminal and civil law, but common to all legal systems is a set of fundamental sanctioning goals for the protection, restoration, and improvement of public order. While these fundamental goals have been expressed in many forms, they may be synthesized into seven specific goals: (1) Preventing imminent discrete public order violations; (2) Suspending current public order violations; (3) Deterring, in general, potential future public order violations; (4) Restoring public order after it has been violated; (5) Correcting the behavior that generates public order violations;