4　国際刑事裁判のディレンマの政治構造

抄録

This article aims to identify structural factors hampering international efforts to bring peace through justice. It does so by examining the nature of legal norms of international tribunals, the International Criminal Court (ICC) in particular. While the literature on human rights trials in transitional and conflict-affected societies is expanding, debate continues as to whether the prosecution of perpetrators of atrocities truly contributes to peace. At its heart lie different understandings of the role and power of legal norms in international politics―the realist version stressing the weakness of law in the absence of a common government, and the idealist version emphasizing its efficacy. The article postulates that, with elaborate judicial procedures to indict and try wrongdoers, international tribunals are more powerful than the realists claim, but they are still weaker than the idealists would hope in that they lack policing agencies and, in the ICC’s case, operate on the principle of “complementarity.” It then argues that this moderate enforcing power of international tribunals, coupled with their growing legitimacy, poses a dilemma for the international community: it can neither fully deter would-be perpetrators from committing atrocities nor persuade perpetrators to stop atrocities and sign peace treaties because neither the threat of prosecution nor the promise of immunity is credible enough. With case studies of Uganda and Sudan, the article demonstrates how this dilemma leaves room for tribunals to develop into political struggles in which authoritarian leaders seek to strengthen or defend the legitimacy of their rule. Depending on who refers the situation to the ICC (the government of a country where conflict is ongoing, or the Security Council, which determines that the situation constitutes “a threat to international peace and security”), the struggle takes on either domestic or international dimensions.