Transitional/post-conflict justice

The UN Secretary-General’s 2004 Report on the Rule of Law and Transitional Justice in Conflict or Post-Conflict Societies describes transitional justice generally as ‘compris[ing] the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation’.Footnote ⁴ Ruti Teitel more precisely defines ‘transitional justice’ as ‘the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoing of repressive predecessor regimes’.Footnote ⁵ While these broad descriptions may encompass a wide variety of views as to what specifically transitional justice should entail and precisely how ICTs may contribute to its realisation,Footnote ⁶ two fundamental characteristics underlie the paradigm.

First, justice is an important goal to be pursued. Justice within this paradigm has a specific sense related to the rule of law and legal processes, and a claim to justice is one that must be phrased in legal terms.Footnote ⁷ In this sense, justice is opposed to politics as usual. Indeed, justice may not be the only or even the ultimate goal; it may exist alongside or as an intermediary to other goals such as peace or reconciliation.Footnote ⁸ However, justice is a significant and relevant good. As such, the manner in which institutions contribute to justice, the extent to which they do so and the particular conceptions of justice they serve become defining characteristics.

As a consequence, ICTs are perceived within this paradigm as mechanisms for the delivery of a highly formalised and individualised justice in the form of the criminal trial. They are, in this fundamental respect at least, indistinguishable from national criminal courts. Together, international and national or local criminal courts are thought to form a ‘system’ or ‘community’ of courts working to enforce accountability for international crimes for the benefit of societies undergoing transition or recovering from conflict.Footnote ⁹ They are thus distinguished from other justice-related mechanisms such as truth commissions or lustration mechanisms, all of which are contrasted with political (i.e. non-legal) processes.Footnote ¹⁰

Second, transitional justice interventions tend to operate more locally, with their effects felt on the society undergoing a transition or recovering from conflict.Footnote ¹¹ The precise borders of this society may vary; they can be conceived in a more communitarian or more individualistic manner, and the views of the society’s members may be given more or less weight in the design of particular justice mechanisms. However, the key point is that all justice mechanisms, including ICTs, should be evaluated in terms of the benefits they bring to particular defined societies in transition or post-conflict. The paradigm is inapplicable, however, to societies that have not yet entered into transition or that remain in the midst of conflict.Footnote ¹² Furthermore, the international audience, which transcends the borders of particular societies, is given at most secondary consideration after the concerns of local populations.Footnote ¹³

Juridified diplomacy

Counterpoised to the transitional justice paradigm, critical scholars have put forth an alternative vision that largely conceives of ICTs as instruments of international politics.Footnote ¹⁴ This paradigm – building on Simpson’s notion of ‘juridified diplomacy’ – is constructed upon premises that at least appear fundamentally opposed to those that underlie the transitional justice paradigm.

First, within this paradigm, ICTs are not primarily instruments of law and of justice but of diplomacy and of politics.Footnote ¹⁵ They are set up by states to achieve their political purposes rather than for the pursuit of an idealised notion of justice. These purposes may reflect self-interest in a narrow, cynical sense or more broadly conceived, such as a general interest in maintaining international peace and security. As instruments of politics, they fulfil these purposes primarily through influencing the calculus or perceptions (short or long term) of political actors,Footnote ¹⁶ although interaction with ICTs may also have a normative effect on the interests of states in the long term.Footnote ¹⁷ The key point is that the fact that ICTs conduct criminal trials is considered at most an accidental or secondary characteristic of such institutions. ICTs have much more in common with other mechanisms of international diplomacy, such as the threat or imposition of sanctions or military intervention, than they do with national courts.Footnote ¹⁸

Second, defining ICTs as mechanisms of diplomacy also situates them within a particular community of practice, namely the international diplomatic community. This community may be defined narrowly to include only states or more broadly to account for a wide range of non-state actors. Local actors may even have a role within this community. The defining aspect of this community, however, is that it transcends particular societal borders; by contrast, borders provide the context for the transitional justice paradigm. Moreover, as instruments for effecting political change, international criminal courts and tribunals are not limited to operating within post-conflict or transitional situations. Rather, they are explicitly intended to bring about such changes and potentially bridge conflict and post-conflict societies.Footnote ¹⁹

Competing or complementary paradigms?

As described before, the two paradigms reflect premises defined in opposition to each other and that superficially appear to be irreconcilable. One considers transitional justice as the triumph of law and legal processes over politics. The other regards judicial mechanisms as co-opted for political purposes and rendered subservient to political aims. One defines itself as operating within particular national or societal borders, and the other as operating only across such borders.

On closer look, however, these paradigms depend on each other for their respective existences and cannot be easily separated. Indeed, they are mutually constitutive: the decision to pursue justice through legal mechanisms is itself a political decision, whilst this decision is justified through appealing to legal norms and implemented through legal mechanisms. And while the focus of transitional justice is on one particular society, that society’s claims to justice are often articulated in presumptively universal norms that reject its past practices. Yet as Ruti Teitel notes, despite the appeal to the universal, what constitutes justice ‘is determined not from an idealized archimedean point but from the transitional position itself’.Footnote ²⁰ Thus, it is impossible to separate one paradigm entirely from the other. As Frédéric Mégret observes, ‘all attempts at prioritizing one over the other seem destined to fail, as the excluded paradigm comes back to haunt the dominant account’.Footnote ²¹

These two paradigms of transitional justice and juridified diplomacy constitute ideal types, each representing a distinct set of contradictory but also mutually constitutive values in dialogue with each other: the local and judicial contrasted with the international and political. International criminal law is a contested field in which states and other policy-makers are constantly articulating and mediating between values such as law and politics, realism and idealism, individual and collective, local and international and so forth.Footnote ²² As the debate between the competing values represented by each paradigm plays out over time, support for one or the other set of values ebbs and flows among those in a position to influence the development of ICTs and manifests in differences within and between these institutions over time. The next section of this chapter looks at why and to what extent the values represented by one or the other paradigm have come to dominate in different ICTs.

Nuremberg and Tokyo tribunals

The establishment of the Nuremberg and Tokyo tribunals emerged not out of a commitment to deliver justice to affected communities but rather as part of broader efforts to achieve the overarching political aims of ending the war and establishing peace. The founding documents of the Nuremberg and Tokyo tribunals rooted these institutions, respectively, in the 1943 Moscow and 1945 Potsdam Declarations, sweeping political documents setting out the Allies’ aims and intentions with respect to the conduct and termination of hostilities and the establishment and maintenance of peace and security after the war.Footnote ²³ The Moscow Declaration situated a call for punishment alongside such broad political aims as continuing the war, disarming the Axis powers, establishing what was to become the United Nations and regulating armaments in the post-war period.Footnote ²⁴ The Potsdam Declaration, occurring nearer to the end of the war, listed the need to mete out ‘stern justice’ among the comprehensive terms for Japanese surrender.Footnote ²⁵

The threat of punishment contained in the Moscow and Potsdam Declarations did not, however, necessarily reflect any commitment to criminal justice as understood within the transitional justice paradigm. The Moscow Declaration reserved the question of how major war criminals would be punished for a future decision of the Allies,Footnote ²⁶ and it was equally contemplated that they could be summarily executed without trial or following only the most cursory ‘show trial’, as opposed to following a full trial.Footnote ²⁷ The decision to punish these individuals – already denoted as ‘war criminals’ – through the mechanism of a criminal trial came much later, long after the decision to inflict individual punishment on the authors of atrocities had been taken.Footnote ²⁸ The Tokyo Tribunal largely followed its influential predecessor. Thus, while the Nuremberg prosecutor Robert Jackson referred to the decision to subject those responsible for Nazi atrocities to criminal trials as ‘stay[ing] the hand of vengeance’,Footnote ²⁹ at their roots, these tribunals represented the threat of individual violence to be inflicted directly on the Allies’ political opponents. The decision to opt for criminal trials instead of summary executions merely channelled and did not substitute for such threats of individualised violence.

The nature of the crimes the tribunals were to address further reflected the primary concern of their creators with matters of international politics and not transitional justice. The main focus of the creators and proponents of the tribunals was the launching of an aggressive war, a crime that affected primarily the interests of states.Footnote ³⁰ War crimes, which also implicated primarily the interests of states and their militaries, were of lesser but significant concern.Footnote ³¹ Far less significance was attached to crimes against humanity, the one category of crimes that most reflects the concerns motivating the more recent transitional justice paradigm.Footnote ³²

Over time, the Nuremberg and Tokyo tribunals increasingly took on apparent characteristics of the transitional justice paradigm. As mentioned earlier, criminal trials triumphed over the prospect of summary executions, crimes against humanity were eventually included in the tribunals’ charters, and trials were carried out even after the Allies’ war aims had been achieved. However, the extent of these developments should not be exaggerated. The legality of trials was sharply contested.Footnote ³³ Prosecutions were highly selective. The tribunals not only focused exclusively on German and Japanese defendants, but also spared those German and Japanese officials who could serve useful political purposes.Footnote ³⁴ The tribunals’ jurisdiction over crimes against humanity was restricted to crimes committed in execution of or in connection with the war.Footnote ³⁵ Though the war may have ended, trials were seen as serving the broader purpose of delegitimising Nazism and Japanese imperialism and establishing the ideological foundations of the post-war order.

Thus, to the extent that the Nuremberg and Tokyo tribunals took on apparent characteristics of transitional justice, they did so primarily for reasons of international politics, not out of concern among policy-makers as to their domestic effects on transitional societies. The decision to reject summary executions in favour of criminal trials had little to do with the impact of these trials on Germany or Japan. Rather, to impose punishment on individuals without trial was considered by international decision-makers to be an affront to shared international values.Footnote ³⁶ Similarly, the incorporation of crimes against humanity came only after pressure from non-governmental organisations who appealed not to a particular society’s need for justice but to a common sense of humanity perceived to be shattered by these crimes.Footnote ³⁷ In short, the tribunals were tools of diplomacy: in Simpson’s words, they ‘pursue[d] political ends through jurisprudential means’.Footnote ³⁸

ICTY/ICTR

Like their Nuremberg and Tokyo predecessors, the ICTY and ICTR bear many of the hallmarks of juridified diplomacy. They were established by an overtly political body – the UN Security Council – in the exercise of a political mandate – Chapter 7 of the UN Charter – with a view to achieving an overtly political aim: the restoration and maintenance of international peace and security.Footnote ³⁹

In both cases, the establishment of the tribunals followed an escalating series of Security Council resolutions and presidential statements, beginning with expressions of general concern about or condemnation of the ongoing violence and continuing through the imposition of arms embargoes, calls to respect humanitarian law, the deployment of peacekeepers and, penultimately, the establishment of commissions to investigate allegations of international crimes.Footnote ⁴⁰ Only after the failure of these actions to achieve their intended aims of restoring peace and security did the Security Council turn to the establishment of tribunals. In these circumstances, threatening individualised violence against perpetrators of crimes was seen as a more forceful action that could be taken either without going so far as to intervene militarily in the case of the former YugoslaviaFootnote ⁴¹ or to make up for having failed to intervene adequately in the case of Rwanda.Footnote ⁴²

The primary political function of the ICTY and ICTR was further reflected in the debate, or more properly the lack of debate, concerning their features. Echoing the relationship between the Moscow Declaration and the establishment of the Nuremberg Tribunal, the decision to establish the ICTY preceded any consideration of the means by which it would operate.Footnote ⁴³ Meanwhile, as with the Tokyo Tribunal, the ICTR’s Statute largely replicated that of its sister institution.

As was the case with the Nuremberg and Tokyo tribunals, states targeted and labelled as ‘criminals’ those individuals whom they intended the ad hoc tribunals to prosecute long before they had been established, let alone having begun any investigations or trials.Footnote ⁴⁴ To the extent that states expressed views on the possible features of the ICTY, at least some influential states advocated features inimical to the concept of fair and independent justice, such as placing it under the control of the Security Council.Footnote ⁴⁵ Once established, the ICTY and ICTR also found their ability to carry out their mandates frustrated by a lack of support by states, suggesting that the interest of states in using the political threat of punishment outweighed their support for adjudicating crimes committed in the regions.Footnote ⁴⁶

Notwithstanding their firm roots in international political concerns, the ICTY and ICTR showed increasing affinity with the transitional justice paradigm. Both tribunals were established, at least formally, not only to restore peace and security, but also to hold accountable those responsible for serious violations of international humanitarian lawFootnote ⁴⁷ and, in the case of the ICTR, to contribute to national reconciliation and the strengthening of national courts.Footnote ⁴⁸ Their jurisdictions were extended from the Nuremberg and Tokyo tribunals to include genocide, war crimes committed in non-international armed conflict and crimes against humanity when committed in non-international armed conflict (ICTY) or even independent of any nexus to armed conflict (ICTR),Footnote ⁴⁹ and they were given broad jurisdiction over all sides to the conflicts. Suggestions to subordinate the judicial process to political supervision were rejected,Footnote ⁵⁰ the independence of the tribunals was guaranteedFootnote ⁵¹ and cooperation and support was eventually forthcoming with the overwhelming majority of suspects surrendered to the tribunals.

As they grew, the tribunals began to develop and to articulate their own conceptions of their roles as instruments of transitional justice and of reconciliation, and to move themselves in these directions.Footnote ⁵² Outreach to local populations was accepted, if belatedly, to be an important component of the tribunals’ practices, and the tribunals gradually began to work more closely with national courts and other organisations engaged in transitional justice.Footnote ⁵³

As with Nuremberg and Tokyo, the ICTY and ICTR’s transitional justice mandates were not universally accepted,Footnote ⁵⁴ and the extent to which they have contributed to local justice remains limited. They have been accused of impartiality for not prosecuting all sides to the conflicts despite having the jurisdiction to do so.Footnote ⁵⁵ More importantly, an immense gulf (or ‘impunity gap’) persisted between the activities of the ad hoc tribunals and demands for punishment of those responsible for atrocities. Ten years after the establishment of the ICTR, thousands remained in Rwandan jails awaiting trialFootnote ⁵⁶ and it was not until 2011 that the tribunal approved the transfer of suspects for trial in Rwanda on the basis of ‘international standards’ (namely, opposition to capital punishment), which was prioritised over calls for more local accountability.Footnote ⁵⁷

While the tribunals themselves and their staff may have developed and acted on their own conceptions of the ICTY and ICTR as instruments of transitional justice, support among states for the apparent turn towards this paradigm can be explained to a large extent in light of international political concerns. More specifically, two sorts of international influences – normative and instrumental – led to states supporting efforts by the ICTY and ICTR to take on apparent characteristics of transitional justice.

First, as with Nuremberg and Tokyo, international values shaped both the structure and the operations of the ad hoc tribunals. Suggestions to subject them to the political control of the Security Council were rejected as inconsistent with international values,Footnote ⁵⁸ and it was considered ‘axiomatic’ that the tribunals’ procedures should be consistent with internationally recognised human rights.Footnote ⁵⁹ The international nature of the tribunals, including in particular the composition of their judiciaries and their location outside situation countries, was seen as means to safeguard their international legitimacy.Footnote ⁶⁰ When international and national values clashed, such as over the location of the tribunals, the primacy of the tribunals over national courts or the prohibition of the death penalty before the ICTR, it was the international that won out, even though encouraging national values could arguably contribute more to transitional justice.

Second, states came to support the transitional justice mandate of these tribunals for more instrumental reasons. As international public opinion paid increasing attention to the unfolding atrocities and support for accountability measures grew, it became in the interests of states to be seen as defenders of the international rule of law and to provide the ICTY and ICTR with necessary cooperation and support.Footnote ⁶¹ The same states also quickly realised that the international legitimacy bestowed by fair and independent judicial processes could further their own political aims. The issuance of arrest warrants for Radovan Karadžić and Ratko Mladić provided an objective basis for excluding them from negotiations on the future of Bosnia-Herzegovina, thereby enabling diplomats to deal with their preferred interlocutor, Slobodan Milošević.Footnote ⁶² Later, the perception of Milošević as a war criminal, even before an indictment was issued, eased the acceptance for the ongoing bombing of Kosovo by NATO forces.Footnote ⁶³ This recognition of the possible convergence between states’ political interests and the legitimacy bestowed by independent judicial bodies constituted a significant development in the practice of ICTs and was to be of relevance for the ongoing negotiations on the establishment of the ICC.

International Criminal Court

To some extent, the adoption of the Rome Statute of the International Criminal Court in 1998 can be seen as continuing the trend of increasing recognition of the transitional justice paradigm. It may even be described as, to that point, a high-water mark in the development of ICTs qua transitional justice mechanisms. The ICC has broad jurisdiction over crimes against humanity outside of situations of armed conflict as well as war crimes committed in non-international armed conflict.Footnote ⁶⁴ The exercise of this jurisdiction is subject to the principle of complementarity,Footnote ⁶⁵ suggesting a preference for domestic proceedings that are closer to affected populations. Victims have unprecedented rights to participate in proceedings and to obtain reparations, rights that make sense only within the transitional justice paradigm.Footnote ⁶⁶ Most importantly, its jurisdictional regime puts fundamental determinations of where and when the ICC will act in the hands of an independent prosecutor and judges guided by objective criteria set out in the Statute.Footnote ⁶⁷

One should not be too hasty, however, in celebrating the ICC as an unqualified victory for the premises of transitional justice. As noted by Judge Philippe Kirsch, the first president of the ICC and former chairman of the committee that elaborated the ICC’s Statute,

Originally conceived as ‘a “facility” for states – something of which they might avail themselves if they thought it useful or expedient to do so’,Footnote ⁶⁹ the ICC may be triggered by states referring situations (individually or via the Security Council), and the Statute accords privileged status to these referrals. Not only may the prosecutor investigate such situations without first awaiting judicial approval as he must in the case of investigations proprio motu,Footnote ⁷⁰ but the referring state or Security Council may also challenge a decision of the prosecutor not to investigate or prosecute.Footnote ⁷¹

The early years of the ICC have seen states seize it in circumstances that recall the establishment of previous ICTs. Uganda and the Central African Republic referred situations on their own territory, specifically targeting individuals opposed to the governing regime in their referrals.Footnote ⁷² Much as it did in establishing the ICTY and ICTR, the Security Council referred the situation in Darfur, Sudan, only following the failure of a series of increasingly stringent measures, including the establishment of a commission of inquiry, to achieve peace and security.Footnote ⁷³ In an action that recalls the earlier origins of ICTs in the 1943 Moscow Declaration, the Security Council referred the situation in Libya in the context of a broader resolution aimed at stemming a conflict.Footnote ⁷⁴ In each of these cases, the threat of punishment was seen as a tool for achieving a political end – the resolution of conflict – and this threat could be withdrawn through legal processes or promises of non-cooperation if withdrawal would further those ends.Footnote ⁷⁵ In these circumstances, the principle of complementarity represents not so much a preference for national or local trials but rather deference to states that may choose to relinquish the exercise of jurisdiction to the ICC.Footnote ⁷⁶

Even the proprio motu powers of the prosecutor and his or her discretion in deciding to investigate situations or cases can be fully explained within the juridified diplomacy paradigm. States undoubtedly realised, from the experience of the ICTY, that the ability of the ICC to influence political developments would depend on its perceived legitimacy. By creating an independent prosecutor, states have ‘outsourced’ difficult decisions as to when and where to intervene judicially with two potential benefits.

First, it increases the legitimacy of international action if judicial intervention is triggered or led by an independent prosecutor, rather than a handful of possibly self-interested states. Second, there may be situations where states wish international action to be taken but would not be willing to incur the political costs of referring a situation to the Court. By feeding information to the prosecutor, they may anonymously contribute to the opening of an investigation. In exchange for these benefits, states had to accept the risk of an independent prosecutor and judges who may act against their interests. However, it should be recalled that such independence, as a practical matter, is not unlimited. The whole ICC system is, at its core, entirely dependent on the support and cooperation of states.Footnote ⁷⁷ In particular, without the arrest of suspects, the ICC may be prevented from carrying out trials. As such, states retain significant control over the effectiveness of the ICC.

That the ICC can be largely explained within the juridified diplomacy paradigm – as a means of routing political interests through legal forms – does not necessarily negate its role as an instrument of transitional justice. The two could be complementary. It could also be that the two paradigms have converged in the recognition that justice and peace must, in the words of UN secretary-general Ban Ki-Moon, go ‘hand in hand’.Footnote ⁷⁸ In 2010, states parties to the ICC Statute held a conference to review the Statute, during which they devoted a significant portion of time to a ‘stocktaking’ of international criminal justice as it currently stands.Footnote ⁷⁹ While they emphasised that justice is ‘a fundamental building block of sustainable peace’,Footnote ⁸⁰ their discussions reflected a limited commitment to a view of the ICC as an instrument of transitional justice. Its ultimate impact was considered primarily in terms of its contribution to peace;Footnote ⁸¹ its impact on victims and affected communities was treated as a secondary or incidental effect.Footnote ⁸² Furthermore, when it came to closing the so-called impunity gap between national jurisdictions and the ICC, states made clear that the ICC had a very limited role in strengthening national jurisdictions. In their view, it should rather focus on its ‘core mandate and function’, whilst ‘[a]ctivities aimed at strengthening national jurisdictions … should be carried forward by States themselves, together with international and regional organizations’.Footnote ⁸³

Integrating transitional justice and juridified diplomacy in practice

The history of ICTs, as depicted earlier, demonstrates that it is possible to render these institutions more responsive to transitional justice concerns. States have increasingly recognised that the legitimacy provided by independent judicial bodies can contribute to the advancement of their own political interests. They have accordingly accepted and even supported the independence and judicial nature of ICTs and provided them with necessary support. This interest of states has also opened the opportunity for ICTs to develop their own identities and for ‘outsiders’, most notably non-governmental organisations, to also influence their direction.Footnote ⁸⁴

By arguing that the legitimacy of ICTs depends on such factors as the fairness of trials and the effectiveness of cooperation or outreach, advocates of transitional justice have sought to move ICTs in this direction. To date, states have shown greater receptivity to arguments concerning the ‘justice’ aspect of the transitional justice paradigm, that is, to ensuring the fairness of judicial proceedings, than to its ‘transitional’ component, that is, its benefit to societies undergoing transition.

Any effort to render ICTs more responsive to transitional justice concerns will encounter two significant challenges. First, as reflected earlier, support of states for the transitional justice mandate of ICTs remains limited. A considerable increase in state support would be needed to effect a significant shift in the role of ICTs towards transitional justice. Second, turning ICTs into comprehensive instruments of transitional justice would require incredible investments. In the case of Rwanda, for example, the ICTR issued indictments against eighty individuals, yet approximately 120,000 persons remained in jail as of 2004.Footnote ⁸⁵

The complementarity challenges in the situations before the ICC are similarly daunting.Footnote ⁸⁶ Promoting effective and comprehensive transitional justice will require longer-term involvement in societies and a broader approach to criminality than that currently employed by any ICT. Even only moving international courts and tribunals partially towards closing the ‘impunity gap’ would significantly change the functioning of these institutions. In this context, the questions remain whether, to what extent and in what form further expanding the transitional justice role of ICTs would be desirable.

The desirability of integrating transitional justice and juridified diplomacy

Given the limited support of states and the significant investments likely to be required, prudence is merited in any effort to enhance the contributions of ICTs to transitional justice. Demanding too much too quickly risks creating unrealistic expectations that courts and tribunals will be unable to fulfil. Such failures in the short term could significantly impair enthusiasm for broader transitional justice initiatives in the long term. Moreover, a backlash may emerge if states see the mandates of these institutions being stretched too far beyond what they are willing to support.Footnote ⁸⁷ Emphasising the contributions of ICTs to transitional justice goals may also lead to a diminution of support and cooperation, to the extent that states do not see these goals as being in their interests. In contrast, stressing the contributions of ICTs to international peace and security increases the likelihood that states will see their interests reflected and provide the support and cooperation necessary for ICTs to function as instruments of both transitional justice and juridified diplomacy.Footnote ⁸⁸

In addition, there is a potentially significant loss incurred in transforming ICTs into more effective instruments of transitional justice. ICTs are beginning to emerge as potentially powerful tools of specific deterrence and conflict resolution.Footnote ⁸⁹ Burdening ICTs with the responsibility to deliver comprehensive transitional justice could significantly curtail the flexibility and freedom of action that, arguably, enables them to make these contributions. To the extent that it is desirable to pursue transitional justice, it may be preferable to heed the lessons of the 2010 ICC Review Conference stocktaking exercise and to focus on developing national capacities to promote transitional justice while preserving the more selective, targeted role of international courts and tribunals as instruments of juridified diplomacy – bearing in mind that many of the same challenges of contestation of values will be replicated at national and local levels.

Focusing on the juridified diplomacy role of ICTs is not without its own dangers. Leaving ICTs as instruments of international politics risks opening them to the cynical manipulation of states, thereby undermining not only their limited contributions to transitional justice but also their legitimacy, which provides their added value within the juridified diplomacy paradigm. It is crucially important – even within this paradigm – that states are aware of the substantial damage that can result from undermining the legitimacy, independence or effectiveness of ICTs, or of failing to provide them with the necessary support and cooperation.

Even minor instances of non-cooperation or infringement on the perceived independence or legitimacy of ICTs can have significant effects because, as Thomas Franck has observed with respect to international law more broadly, ‘[i]n a community whose rules are so largely derived from the persistent patterns of its members’ conduct, each action is judged by all states in terms of its projected effect it all were to act similarly’.Footnote ⁹⁰ It is therefore vital that states make every effort to refrain from interfering with, and provide full support to the conduct of, independent judicial processes before ICTs. In those limited cases where states may consider it absolutely necessary to withhold support or otherwise to interrupt the judicial process, every effort should nevertheless be made to preserve the integrity of ICTs.