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The Darfur referral to the International Criminal Court demonstrates the limits of international criminal justice as an agent of wartime deterrence evident in the experience of the ICTY in Bosnia. First, international tribunals cannot deter criminal violence as long as states and international institutions are unwilling to take enforcement actions against perpetrators. Second, the key to ending impunity in an ongoing war lies less in legal deterrence than in political strategies of diplomacy, coercion, or force. Third, the contribution of criminal justice in aftermath of mass atrocity is dependent on which strategies are used to put it to an end.

The traditional realist paradigm holds that the sovereign nation-state is the principal political and legal unit in the world community. Reflecting this tradition, most studies of economic sanctions are state-centered. They assume that states exercise control over their national corporations to deny economic resources to other states. Within this framework, nongovernmental human rights organizations become involved only as interest groups, lobbying governments to regulate or ban private economic activity with designated malefactor. These groups, however, are generally unable to persuade states to mandate disinvestment from or socially responsible behavior within repressive regimes. As a result, they redirect their energies away from the central authorities and toward corporations-directly pressuring them through boycotts and shareholder activism-and local governments-persuading them to condition municipal contracts on human rights criteria.This essay examines the degree to which these nonstate actors can provide an alternative center of authority to that of the state in imposing human rights accountability on corporate conduct abroad. The first section explains the logic of nonstate sanctions and establishes criteria against which one can judge their challenge to realism. The second section assesses the successes and limitations of the anti-apartheid movement, which is viewed as the role model for such efforts. The third and final section contrasts the South African case with recent campaigns against corporate investment in Burma and Nigeria. These cases have been chosen because most grassroots organizations have pressed for corporate withdrawal rather than for more socially responsible business practices. Each represents an attempt by citizens' groups to impose sanctions against repressive regimes beyond those enacted by governments.

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The argument against factoring peace processes into the discretion of the ICC Prosecutor is based on the premise that international law can be decontextualized from international politics and that in doing so will have superior consequences in terms of deterring atrocity and in consolidating peace. This view is at odds with the history of international criminal tribunals and the cases currently under review by the ICC. Those episodes demonstrate that the effectiveness of international criminal justice and its impact on peace are shaped and constrained by the political strategies of conflict resolution used by states and intergovernmental organizations to end criminal violence. Hence the Prosecutor should construe his discretion broadly to take account of the political context in which international criminal law has to operate.