Stay the hand of justice? Evaluating claims that war crimes trials do more harm than good

Abstract

An enduring dilemma in war is whether and how to punish those responsible for war crimes. In this essay, we analyze the most frequent criticisms made by war crimes trial skeptics, including the claims that such trials endanger prospects for peace by encouraging enemies to continue fighting, that they achieve only “victors’ justice” rather than real justice, and that, in any event, they are unnecessary due to the existence of more effective and less costly alternatives. We conclude, in accordance with a “moderate retributivism,” that when carried out consistently with established law and procedure, and when not dramatically outweighed by concerns that trials will exacerbate ongoing or future conflicts, prosecutions are a legitimate, and sometimes necessary, response to violations of the laws of war and international criminal law more broadly.