UC Berkeley

My project uses the case study of the ICTY and reconciliation in the Balkans to address the larger topic of the capacity of international criminal tribunals (ICTs) as transitional justice mechanisms. I argue that the ICTY operates under the (flawed) received wisdom of the IMT at Nuremberg, what I term the international criminal justice template. This template accords three transitional justice functions for ICTs beyond (and in conjunction with) their central judicial aim of adjudicating cases: as (1) articulators of progressive criminal law (2) historians and (3) reconcilers or storytellers. My examination of the ICTY through each category illustrates that obstacles to the ICTY's role as a transitional justice mechanism are structural, and relate to the absence of a discursive loop between sovereign and governed. This discursive loop, present at domestic law, accounts for the capacity of domestic courts to perform the tasks identified by law and society scholars as central to courts, namely the capacity to act as constitutive social agents as well as the capacity to exert social control. At the international level, this capacity is interrupted. The dissertation calls for new scholarship and the development of international law and society studies, in order to better theorize and understand the structural and theoretical constraints governing the establishment of legitimacy for international criminal courts.