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.