Over the last ten years, international relations (IR) theory, a branch of political science, has animated some of the most exciting scholarship in international law.1 If a true joint discipline has not yet emerged,2 scholars in both fields have clearly established the value of interdisciplinary cross-fertilization. Yet IR—like international law—comprises several distinct theoretical approaches or “methods.” While this complexity makes interactions between the disciplines especially rich, it also makes them difficult to explore concisely. This essay thus constitutes something of a minisymposium in itself: it summarizes the four principal schools of IR theory—conventionally identified as “realist,” “institutionalist,” “liberal” and “constructivist”—and then applies them to the norms and institutions governing serious violations of human dignity during internal conflicts (the “atrocities regime”).

In May 1993, the United Nations Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY). Over the past five years, the ICTY has shifted from an institution lacking a basic structure, staff and other resources—not to mention indictees in custody—to a fully functioning tribunal pursuing (as of December 1998) twenty-two public indictments against fifty-six indictees; twenty-eight indictees are in custody, awaiting trial or serving a sentence; five have been convicted; one has pleaded guilty; one has been acquitted; several trials are under way; and several more are in pretrial stages. Although its ultimate success is not yet guaranteed, the ICTY is coming of age as a credible forum for the international prosecution of war crimes within its jurisdiction. The following account describes the ICTY’s current status, analyzes its jurisprudence (as seen in its most significant decisions), and briefly assesses its place in the development of international humanitarian law.

I have mixed feelings about participating in this symposium as the feminist voice. On the one hand, I want to support the symposium editors’ attempt to broaden the standard categories of international legal methodologies by including feminism in this undertaking. On the other hand, I am conscious of the limits of my analysis and its unrepresentativeness—the particularity of my nationality, race, class, sexuality, education and profession shapes my outlook and ideas on international law. I clearly cannot speak for all women participants in and observers of the international legal system. I also hope that one day I will stop being positioned always as a feminist and will qualify as a fully fledged international lawyer. My reservations are also more general because presenting feminism as one of seven rival methodological traditions may give a false sense of its nature. The symposium editors’ memorandum to the participants encouraged a certain competitiveness: we were asked, “Why is your method better than others?” I cannot answer this question. I do not see feminist methods as ready alternatives to any of the other methods represented in this symposium. Feminist methods emphasize conversations and dialogue rather than the production of a single, triumphant truth.1 They will not lead to neat “legal” answers because they are challenging the very categories of “law” and “nonlaw.” Feminist methods seek to expose and question the limited bases of international law’s claim to objectivity and impartiality and insist on the importance of gender relations as a category of analysis. The term “gender” here refers to the social construction of differences between women and men and ideas of “femininity” and “masculinity”—the excess cultural baggage associated with biological sex.

The International Criminal Tribunal for the former Yugoslavia (ICTY) was established in 1993 to prosecute war crimes committed during the Yugoslav conflict; the International Criminal Tribunal for Rwanda (ICTR) was established in 1994 to prosecute war crimes committed during the Rwandan civil war. The Yugoslav Tribunal has the competence to try alleged offenders for crimes enumerated in Articles 2-5 of its Statute, namely, grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity. Similarly, the Rwandan Statute accords the Tribunal authority to try defendants for crimes enunciated in Articles 2-4, namely, genocide, crimes against humanity, and violations of common Article 3 of the Geneva Conventions and of Additional Protocol II. Article 7, paragraphs (1) and (3) of the ICTY Statute and Article 6, paragraphs (1) and (3) of the ICTR Statute grant jurisdiction to these ad hoc Tribunals to try the accused for individual criminal responsibility on the bases of individual culpability and superior authority.

The problem of criminal responsibility for human rights atrocities committed in internal conflict provides an appropriate vehicle for examining various theoretical and methodological approaches to international law. The issues raised include the following: Does international law provide for individual criminal responsibility for such acts? How best can these atrocities be prevented? Should international law address these matters or are they better left to domestic law? Why does international legal doctrine distinguish between human rights violations committed in international conflict and the identical acts committed in internal conflict?

In January and February 1998, various United States officials, including the President, asserted that unless Iraq permitted unconditional access to international weapons inspections, it would face a military attack. The attack was not to be, in Secretary of State Madeleine Albright’s words, “a pinprick,” but a “significant” military campaign. U.S. officials, citing United Nations Security Council resolutions, insisted that the United States had the authority for the contemplated attack. Representatives of other permanent members of the Security Council believed otherwise; that no resolution of the Council authorized U.S. armed action without its approval. In late February, UN Secretary-General Kofi Annan traveled to Baghdad and returned with a memorandum of understanding regarding inspections signed by himself and the Iraqi Deputy Prime Minister. On March 2, 1998, the Security Council, in Resolution 1154, unanimously endorsed this memorandum of understanding.

We structured this symposium on the premise that comparison reveals critical differences. We asked our authors, as noted in the introduction, to describe their methodology, apply it to the concrete problem of accountability for atrocities in internal conflict, and discuss its merits and demerits relative to other approaches presented in the symposium. We threw out these questions as a means of structuring a debate in a way that would be most helpful to our readers and that would encourage our authors to engage with each other as self-consciously as possible. We did not seek competition as an end in itself, but as a spur to self-reflection.

The 1994 Uruguay Round revision of the dispute settlement mechanism under the General Agreement on Tariffs and Trade/World Trade Organization (GATT/WTO) has made it a forum both for traditional trade issues and for interests ranging from environmental protection to national security. The limits of GATT jurisdiction have become important issues of dispute settlement within the WTO, especially as the emergence of the WTO and its rule-based, quasi-obligatory dispute settlement system has spurred a significant shift toward legalism. Constitutional structures are developing much faster in international trade law than in any other area of international law and, in the aftermath of the Uruguay Round, are integrating ever more aspects of economic relations among states. Within the WTO regime the dispute settlement mechanism established by the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) plays a prominent role in enforcing its rules and reconciling a wide array of the members’ interests. The limits of the reach of the dispute settlement mechanism, given its obligatory character, are, to a certain degree, the limits of the constitutionalization of the organization as a whole.