Empirical analysis of international criminal law: The perception and Experience of the Accused

Scalia, Damien [UCL] Devresse, Marie-Sophie [UCL]

International criminal justice is at a crossroads: International Criminal Tribunals for the former-Yugoslavia and Rwanda are closing and the International Criminal Court is developing growing activity. It is therefore crucial to adopt a new perspective in the analysis and understanding of the rationality and impacts of these post-mass crimes mechanisms: this would help clarify and strengthen their foundations and relevance. The purpose of our contribution is to present the analysis of international criminal institutions and justice better understand what kind of answers are given for mass crimes and if they achieve the goals and finalities they pursue, in taking into account the perspective of tried people (acquitted and condemned). More specifically, we analyse the discourses of around 60 individuals (made by semi-directive interviews conducted by the authors) who were tried by the ICTY and ICTR in order to approach experience and reception of international criminal law. This article is divided in two chapters. Before presenting the results of our research, we propose to develop a theoretical approach that would justify the recourse to “penal experience” of people prosecuted in order to analyse the rationality, functioning and impacts of international criminal justice. Our reasoning, based on conceptual landmarks drawn from the social sciences, allows us also to support a specific approach to the legal process as phenomenon. It is therefore not only addressed to sociologists, social psychologists or criminologists, but also to lawyers, who are, considering the foundations of their field, probably the most resistant to our approach. The article expounds first the necessity to establish a Respondents’ approach. Secondly, we propose a presentation and analysis of discourses of tried people. It gives different results: firstly, the criminal process is poorly conceived, more so than the pronounced sentence. Moreover, the attributed responsibilities are rejected as a matter of principle, with a particular dismissal of forms that are specific to international criminal law i.e. command responsibility and joint criminal enterprise. These two results explain why international justice is viewed as unfair, politicised and as an outgroup justice. We analyse these findings against the backdrop of the current scholarly debates and developments concerning the forms of responsibility ascribed for international crimes, as well criminology research on biases in self-perceptions of responsibility. Secondly, discourses of tried people highlight domination and scapegoating rhetoric. Fourthly, we analyse specifically the experience of acquitted people. Indeed, acquittal is an unthought in international criminal law and the discourse of our participants confirms this assessment. So, these empirical results challenge the purposes pursued by international criminal law.