Social Skill, the Milosevic Indictment, and the Rebirth of International Criminal Justice

AuthorJohn Hagan,Ron Levi
DOI10.1177/1477370804045693
Published date01 October 2004
Date01 October 2004
Subject MatterArticles
Social Skill, the Milosevic Indictment,
and the Rebirth of International
Criminal Justice
John Hagan
Northwestern University, USA, American Bar Foundation, Chicago, USA
and University of Toronto, Canada
Ron Levi
University of Toronto, Canada
ABSTRACT
This paper is about social skill and norm enforcement in the field of international
criminal law and its advancement through the indictment of Slobodan Milosevic
at the International Criminal Tribunal for the former Yugoslavia. We rely on
Fligstein’s model of social skill to illuminate tactics applied successfully in
inducing norm enforcement and cooperation in this field. The study draws on a
mail-back survey (n= 109) and over 100 in-depth, personal interviews at the
Tribunal’s Office of the Prosecutor. The qualitative and quantitative findings
provide evidence for the role of institutional entrepreneurs in gaining the
cooperation required for the emergence, reproduction, and transformation of
fields. In the present study, we find evidence that this momentum has led to a
transition in the institutional life of the Tribunal and the broader field of
international criminal law.
KEY WORDS
Institutional Entrepreneurs / International Criminal Law / Norm Enforcement /
Social Skill / Sociology of Law.
Introduction
Social theory increasingly stresses the role of individual agency in the
formation of fields of collective action. For example, Neil Fligstein (2001a)
Volume 1 (4): 445–475: 1477-3708
DOI: 101177/1477370804045693
Copyright © 2004 SAGE Publications
London, Thousand Oaks CA, and New Delhi
www.sagepublications.com
conceptualizes agency as the skill of an entrepreneurial individual to
stimulate collective action and thereby to introduce and reproduce as well
as change social fields. Fligstein emphasizes that ‘analysts must spend time
looking for entrepreneurs and examining their tactics. How do they spread
their ideas, build political coalitions, persuade others, and create new
identities?’ (2001a: 122–3). Fligstein has provided close evidence of the
tactics of skilled strategic actors, such as Jacques Delors, who as President
of the European Commission encouraged an institutional context that
changed government conceptions of national sovereignty and state cooper-
ation in the European Union (Fligstein 1997, 2001b). We heed Fligstein’s
call for continued research on institutional entrepreneurs as a means of
understanding the role played by key actors in developing the International
Criminal Tribunal for the former Yugoslavia (ICTY) and the connected
rebirth of the newly institutionalized field of international criminal law.
The 20th century saw the creation of the Nuremberg and Tokyo
tribunals after World War II and the establishment of the Tribunals for the
former Yugoslavia and Rwanda after the ending of the Cold War. However,
international criminal law enforcement was in effect extinguished for the
near half-century in between these events. When the ICTY was created by
the UN Security Council in the aftermath of the Cold War, it was initially
provided with no building or employees and little funding, and had no one
in custody. After a troubled beginning, the Tribunal has grown in less than
a decade to nearly 1000 employees, US$100 million in annual UN funding,
with a crowded detention unit and a former head of state, Slobodan
Milosevic, on trial. There is now relatively little doubt that this institution
is giving international criminal law new meaning. Yet there is little con-
sensus about how this happened.
The dominant perspective on international criminal law is con-
structivist theory (see Finnemore and Sikkink 1998), which is applied most
notably in Gary Bass’s (2000) political history of war crimes tribunals. ‘The
core argument,’ Bass (2000: 7) writes in explaining elite political support
for tribunals such as the ICTY, ‘is that some leaders . . . are in the grip of
a principled idea,’ which Bass calls ‘liberal legalism’. By linking elite
political leadership closely to the successful enforcement of pre-existing
liberal legal norms, constructivism emphasizes the success or failure of
individuals in implementing these otherwise powerful ideals. Bass (2000:
274) assigns particular responsibility to Louise Arbour as Chief Prosecutor
of the ICTY from 1996 to 1999, but he observes that Arbour ‘undermined
the tribunal by jumping ship’ for the Canadian Supreme Court soon after
indicting Slobodan Milosevic, and concludes that ‘the overall story of The
Hague will be largely a dispiriting one’.
Meyer and Jepperson (2000: 105) provide a different constructivist
446 European Journal of Criminology

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