As a response to the Symposium on the International Criminal Tribunals for the former Yugoslavia and Rwanda published by the American Journal of International Law on the occasion of the tribunals’ closure, this AJIL Unbound Symposium intends to broaden the debate on the “legacies” of those courts. The AJIL Symposium contains articles on the creation of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR); the ad hoc tribunals’ jurisprudential contributions; and their extra-legal impacts and legacies. The concept of “legacy” is itself contested and the appropriateness of the courts’ own efforts to consolidate it may be questioned, especially as they have barely ended (or are about to end) their work. Nevertheless, their over two decades of existence does provide an occasion to assess all they have done and not done, and have affected, intentionally and unintentionally. Against that background, we have invited a group of scholars to respond to the AJIL Symposium and to reflect upon the work of the tribunals with a view to enriching the debate with more voices, from different regions, from different interest groups, and from different disciplines.

This contribution engages with Sara Kendall’s and Sarah Nouwen’s article on the legacy of the International Criminal Tribunal for Rwanda (ICTR) and their call for an ethos of institutional modesty. I much support the nuanced approach that underlies their call and I see it as a prerequisite to properly and adequately appreciate the ICTR’s past existence and operation. I would even be open to moving one step further in the direction of an ethos of sobriety. Rather than seizing the momentum to celebrate accomplishments and highlight milestones, legacy-talk and legacy-construction of international criminal tribunals should entail a form of reckoning. Indeed, as suggested by Kendall and Nouwen, the “justices not done” and the “justices pending” must be part and parcel of the ICTR’s legacy-constructions so as to offer a fair balance and to capture the ICTR’s overall performance, explicitly accounting for results as well as omissions.

In their contribution to the AJIL Symposium, Robinson and MacNeil remark that a prolific legacy of the International Criminal Tribunal for Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) is that “it is now commonsense that rape is and must be a war crime.” This line distills the complexity of the legacies of the tribunals regarding sexual and gender-based violence. On the one hand, it articulates the critical role of the tribunals in cementing the idea that sexual violence, hitherto largely relegated to indifference in international criminal law and policy frameworks, is worthy of international attention. Simultaneously, it encapsulates the ways in which the tribunals’ jurisprudence has been received globally to narrate a narrow conception of conflict-related sexual violence as a “weapon of war” or committed as part of “strategic” conflict-related goals. In fact, there is little that constitutes common sense about sexual violence in conflict, nor is it always, or even most predominantly, committed as a war crime, crime against humanity,or in pursuit of genocide as envisaged by international criminal law. Various studies suggest that sexual violence in war takes many forms and causalities with differentiation across and within conflict contexts.

In February 2013, Navi Pillay, then UN High Commissioner for Human Rights, gave a speech to the General Assembly reflecting on the twenty years that had passed since the Vienna World Conference on Human Rights. She discussed three principal achievements of the Vienna Declaration and Programmeof Action, two of which were “its role in advancing women’s rights” and “its impact on the fight against impunity.” With regard to the first, she discussed the success of the “Women’s Rights are Human Rights” slogan at the conference and the institutional gains it spawned around violence against women(VAW). As for the second, she noted that “[p]erhaps most significantly, just one month after the establishment of the first ad hoc tribunal since Nuremberg [the ICTY], the Declaration nudged the International Law Commission to continue its work on a permanent international criminal court.” Although Pillay did not connect those two achievements—the recognition of women’s human rights and a new focus on impunity alongside international criminal responses to combat it—they were in fact intertwined.

What are the legacies for gender justice of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)? Darryl Robinson and Gillian MacNeil in this symposium describe the modernization of the law on sexual violence as a key legacy of the ad hoc international criminal tribunals. However, this characterization does not capture the wider challenges that gender based crimes have raised for the Tribunals, including other legacies of gendered hierarchiesand inequalities.How, then, is it possible to move past these issues to build international criminal justice so that it transforms, rather than reproduces, gendered injustices?

The International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) established a number of precedents in international criminal law, as detailed by Darryl Robinson and Gillian MacNeil.1 They also set the template for the International Criminal Court (ICC) and other tribunals as to how politics can both empower and constrain international prosecution and determine its potential contribution to peace.The lesson of the ICTY is that international criminal law can assist peace processes in an ongoing way if powerful states and international institutions complement it with coercive political strategies to weaken regimes or militias led by criminal spoilers to the point where their cooperation is not needed tonegotiate and maintain a peace settlement.The lesson of the ICTR is that the impact of international criminal law on consolidating peace is dependent upon the political agenda of the state on whose territory the crimes oc-curred and whose cooperation is needed for effective prosecution.Therefore, the contribution of prosecution to peace depends on whether the law is embedded in national and international political com-mitments that go beyond compliance with formal legal obligations and over which a tribunal has limited influence.

After WWII, countries of Central and Eastern Europe (CEE) actively backed the establishment of the military tribunals in Nuremberg and Tokyo. In the early 1990s, when the International Criminal Tribunals for the Former Yugoslavia (ICTY) and for Rwanda (ICTR) were created by the UN Security Council, the CEE countries again lent uniform, albeit largely rhetorical support to these institutions. A quarter of a century later, this uniformity seems to be gone. While the CEE countries continue to express belief in international criminal justice, they no longer agree with each other on whether this justice has actually been served by the ad hoctribunals. The diverging views on the achievements of the ICTY and ICTR might also partly account for the differences in the approach to the permanent International Criminal Court (ICC), though the grounds for these differences are more complex.

Legacy is a matter that may become topical when its creator finally stops producing. Normally, the silent years would be many before the thought of legacy enters into open, formal discourse among lawyers and decision-makers. This comment treats the meaning of the word as relative to the circumstances in which it is invoked. The more closely it is used in relation to the present, the more distant it drifts from its literal meaning, to the extent that it denotes what the word “impact” signifies. This essay questions whether the word “legacy” is apt in describing the footprint of the work of the two ad hoctribunals in China, where its influence has, as a matter of fact, been waning ever since the adoption of the Rome Statute of the International Criminal Court in 1998 (“Rome Statute” ). The Chinese example suggests that the work of the tribunals is (at least so far) no more significant to international criminal law than the illustrious Nuremberg and Tokyo Trials of the 1940s. The most major impact (a more apposite term than legacy) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR) for China may be that China’s policy with regard to the tribunals, manifested mostly in the United Nations, has determined its approach to the International Criminal Court (“ICC” ). For that, the work of the tribunals could be considered as having left China something in the nature of an indirect legacy.

As Sara Kendall and Sarah M. H. Nouwen rightly notice, “legacy” is a big word, and it may be too soon even to begin to evaluate the legacies of the international criminal tribunals. Legacies are whatever future generations take from the tribunals. That, obviously, is in their hands, not the hands of the tribunals. So the question of legacies is more properly a question of bequests, and the inquiry must be a modest one: how do we evaluate the successes and failures of the tribunals in the here and now rather than the further future? Failures matter as well as successes, and as in science, failures can be as instructive and useful as successes. For example, many observers concluded that the tribunals, operating in The Hague and Arusha without an initial ground game in former Yugoslavia or Rwanda, were too far removed from the peoples who experienced the crimes; that perception helped motivate the movement toward hybrid tribunals. If that is right, the hybrid model counts amongthe “legacies” oftheInternational Criminal Tribunal for the Former Yugoslavia (ICTY)and the International Criminal Tribunal for Rwanda (ICTR), if only in the negative way that they exposed a problem the hybrids tried to remedy. As another example, Kendall and Nouwen remarkthat the impunity of the RPF has also become part of ICTR’s legacy. That too would be an instructive failure—instructive, in this case, as a foretaste of how difficult it is to prosecute cases against an intransigent government in power, a lesson that the International Criminal Court’s (ICC)troubles in Sudan and Kenya confirm.

It is not clear what there is left for a commentator to say once a symposium has unfolded in such a way as to cancel itself out. But in case others read it differently than I do, I am happy to explain how I think this process occurs across the wonderful though self-canceling pages of the American Journal of International Law symposium on the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and—through valedictory reflection on thoseenter prises—on contemporary international criminal law so far. The self-cancellation process, as I see it, takes place in the move from creation story and doctrinal evolution to impact measurement amidst legacy rhetoric. One might take this result as an index of where things stand (or whether anything stands) in the fascinating emergence of a prestigious enterprise—and what might come next.

It is not uncommon for decisions of international tribunals to be reported in the pages of the Washington Post or feature on the BBC News website. It is rather less common for awards to feature on the giant screens of New York’s Times Square. But less than two weeks after the Arbitral Tribuna lunder Annex VII to the United Nations Convention on the Law of the Sea issued its Awardin Philippines v.China, a three-minute video featuring China’s position was broadcast repeatedly on the screen better known forbroadcasting New Year’s Eve festivities than argumentation on the competence of international tribunals. The video asserted that China’s “indisputable sovereignty over [the South China Sea islands] has sufficient historic and legal basis” and that “the Arbitral Tribunalvainly attempted to deny China’s territorial sovereignty and maritime rights and interests in the South China Sea.” It further stated that “China did not participate in the illegal South China Sea arbitration, nor accepts the Awardso as to defend the solemnity of international law.” This latter statement goes to the very heart of the Arbitral Tribunal’s jurisdiction under the 1982 United Nations Convention on the Law of the Sea (the Convention) and its competence to decide the case despite China’s nonparticipation in the proceedings.

The Award on the Merits in the South China Sea Arbitration between the Philippines and China (Award) is the first decision of any tribunalto interpret the provision of the 1982 United Nations Convention on theLaw of the Sea (Convention or UNCLOS) that allows states parties to exclude disputes concerning military activities from the Convention’s compulsory dispute settlement regime. That optional exclusion, embodied in Article 298(1)(b) of the Convention, was a central component of the strenuously-negotiated compromise between states that favored compulsory jurisdiction in principle and those that would have preferred a strictly optional system for third-party legal dispute settlement. Its availability has beencritical in enabling certain states to ratify the Convention and would be an indispensable condition of eventual U.S. ratification. For these reasons, the Award’s treatment of the military activities exception transcends the South China Sea dispute.

The Arbitral Award handed down by the Permanent Court of Arbitration (PCA) on 12 July 2016 in In the Matter of the South China Sea Arbitration between the Republic of the Philippines and the People’s Republic of Chinais undoubtedly one of the most anticipated decisions in recent memory.

The South China Sea Arbitration is a leading case in a new generation of environmental disputes, namely, environmental disputes that occur in disputed territorial or maritime areas. The dispute between the Philippines and China before the United Nations Convention on the Law of the Sea (UNCLOS) Annex VII Tribunal (the Tribunal) dealt in significant part with the Philippines’ allegations of environmental violations by China. The Philippines asserted that China tolerated harmful fishing practices and proceeded with harmful construction activities, and that both caused serious harm to the marine environment of the South China Sea.

On July 12, 2016, a five-person panel of the Permanent Court of Arbitration in the Hague, constituted as an Arbitral Tribunalunder Annex VII of the United Nations Convention on the Law of the Sea (1982) (UNCLOS), handed down a judgment that is surely the most important set of jurisprudential rulings in the modern history of the international law of the sea.

In a case brought in 2013 by the Philippines against China to contest Chinese claims and actions in the South China Sea, the Tribunal ruled in favor of the Philippines on virtually every issue of the dispute. The Tribunal also clarified many murky issues and problems inherent in provisions of the UNCLOS. The judg-ment, therefore, is a landmark ruling that is significant not only for the South China Sea, but also for contested maritime rights and responsibilities in other maritime areas of the world.

International humanitarian law strictly prohibits the use of human shields and, through a well-known genealogy of supranational efforts that passes through the Hague Convention IV (1907), the Geneva Conventions III and IV (1949), the Additional Protocol I (1977), and, more recently, the Rome Statute of the International Criminal Court (1998), has sought to prevent this practice. However, both states and nonstate belligerents have deployed human shields in order to gain military advantages—to ward off attacks by placing civilians close to military targets or hiding military targets within areas inhabited by civilians. This is especially the case in asymmetric conflict, where the weaker party can use human shields to protect fighters, weapons, strategic sites, and critical infrastructures, and to delay, deter, and even discourage attackers from direct engagement that might lead to a high number of civilian casualties. On the other hand, the attacking party can allege that the “other” party is using civilians as human shields. Even in the absence of actual evidence, such an allegation has come to constitute a convenient excuse for attackers to justify civilian casualties and to relegate the responsibility for their deaths to the party that endangered them in the first place. In asymmetric conflict, therefore, parties are incentivized to resort to a politics of human shielding.

Human shielding occurs through the use of the body—an individual or collective physical presence—which is not armed and does not rely on the use of force or fire. Understood as both a means (human shields) and a method (human shielding), shielding is the use of “civilians or other protected persons, whose presence or movement is aimed or used to render military targets immune from military operations.” Human shielding raises difficult doctrinal questions as to the interpretation and implementation of international humanitarian law that are not easily answered. This is in part because human shielding reanimates a series of queries that, as I argue elsewhere, are constitutive of international humanitarian law itself, namely: What and who is a combatant? What and who is a civilian? Who is to judge and according to which premises? Human shielding reanimates these questions because it is upon the definition of a civilian, in contradistinction to the combatant, that the power and efficacy of shielding depends. As I have shown, the distinction between civilian and combatant is partially constituted through discourses of gender which naturalize sex and sex difference. These discourses, as I sketch out below, are cited when theorizing the significance of human shields and reappear when evaluating the representation and meaning of the embodied movement of human shields.

One of the most vexing conundrums of 21st century warfare has been not just the explosive growth in the use of human shields, but the apparent systemization of the tactic, particularly by nonstate actors. In noting the international prohibition, the International Committee of the Red Cross (ICRC) defines the practice as the “intentional co-location of military objectives and civilians or persons hors de combat with the specific intent of trying to prevent the targeting of those military objectives.”