Baylis Article

REASSESSING THE ROLE OF INTERNATIONAL CRIMINAL LAW: REBUILDING NATIONAL COURTS THROUGH TRANSNATIONAL NETWORKS Elena Baylis* Abstract: The international community has long debated its role in re- dressing grave atrocities like war crimes and crimes against humanity. This Article suggests that this debate has focused too much on trials in international and hybrid courts as the primary conduit for international contributions to justice in post-conflict states. It proposes that the international community should look instead to national courts as the primary venue for such trials and to transnational networks as an effective mechanism for international involvement. Key characteristics of this model include: (1) reliance on transnational networks to convey international criminal law and international resources into national settings; (2) hybrid international-national processes in which international actors play a supporting, rather than a controlling, role; and (3) integration of international support for atrocity trials into broader efforts to rebuild national judicial systems. Introduction Ten years after the adoption of the International Criminal Court’s Rome Statute,1 the role of international criminal law in post-conflict justice is ripe for reassessment. Early claims that international criminal * Associate Professor, University of Pittsburgh School of Law. J.D., Yale Law School; B.A., University of Oregon. This Article has benefited from presentations at the Junior International Law Scholars Conference at Yale Law School, the Law and Society Annual Meeting at Humboldt University in Berlin, and a faculty workshop at the University of Pittsburgh Law School. Thanks to Paul Berman, Mark Drumbl, Mark Janis, Chimène Keit- ner, Hari Osofsky, Jaya Ramji-Nogales, Jane Stromseth, Jenia Iontcheva Turner, and David Zaring for their comments, advice, and encouragement; to Lisl Brunner, Malin Delling, Kate Drabecki, and Foreign and International Law Librarian Linda Tashbook for their research; and to the University of Pittsburgh’s School of Law, Center for International Legal Education, University Center for International Studies, and Central Research Devel- opment Fund for grants supporting my field research in the Democratic Republic of Congo. 1 See generally Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute]. 1 2 Boston College Law Review [Vol. 50:1 courts would end impunity for atrocities have long been dismissed as overblown.2 Indeed, as the ad hoc international criminal courts for Yugoslavia and Rwanda work toward completion of their mandates, it has become evident that their accomplishments have been both limited and lopsided, with a decided tilt toward international approbation and influence rather than on-the-ground domestic impact in the concerned states.3 As these limits have become apparent, advocates of international criminal law have sought to redefine its role in post-conflict justice, by shifting focus from international trials as such to international courts’ influence upon national trials and domestic legal systems. Within the United Nations, discussion of the completion strategies for the ad hoc tribunals turns again and again to “legacy” and “outreach,” although the prospects for a significant domestic role for these tribunals are relatively remote at this late date.4 Hybrid tribunals with panels that include both foreign and domestic judges have been introduced in Kosovo, Sierra Leone, Timor-Leste, and elsewhere, with “mixed” results.5 Now, even before the International Criminal Court (“ICC”) has held its first trial, some scholars have conceded that it cannot hope to play its desired transformative role through its own trials; accordingly, they have proposed that it should instead refocus its energies on in- teractions with hybrid and national tribunals.6 While these developments represent a fundamental challenge to the raison d’être of international criminal tribunals, this is but the latest turn in the longstanding debate over the role of international criminal law and the appropriate balance between international and national 2 This conclusion has been reached by supporters and detractors alike. See, e.g., Wil- liam W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 53–54 (2008); Jack Goldsmith, The Self-Defeating International Criminal Court, 70 U. Chi. L. Rev. 89, 89 (2003); Jenia Iontcheva Turner, Nationalizing International Criminal Law, 41 Stan. J. Int’l L. 1, 3–4 (2005). 3 Jane E. Stromseth, Pursuing Accountability for Atrocities After Conflict: What Impact on Building the Rule of Law?, 38 Geo. J. Int’l L. 251, 268–69, 276 (2007); Turner, supra note 2, at 24–26. 4 Stromseth, supra note 3, at 269–79; Turner, supra note 2, at 28–29; Press Release, U.N. General Assembly, Presidents of Tribunals for Rwanda, Former Yugoslavia Address General Assembly, Ask for Continued Support as Completion Dates Approach, U.N. Doc. GA/10636 (Oct. 15, 2007) [hereinafter Continued Support]; see also infra notes 21–43 and accompanying text. 5 Stromseth, supra note 3, at 281; see also infra notes 55–78 and accompanying text. 6 See Burke-White, supra note 2, at 54; Turner, supra note 2, at 29; see also infra notes 55–78 and accompanying text. 2009] Rebuilding National Courts Through Transnational Networks 3 courts in addressing atrocities.7 As this debate has developed, the focus of the discussion seems to have shifted from the core issue—how the international community can best contribute to post-conflict justice in affected states—to the question of the role of international courts. In- deed, the debate now seems to center particularly on whether and how to preserve a central role for these international courts in which the international community has invested so much hope.8 This shift is es- pecially striking in light of the fact that one of the ICC’s core design elements, complementarity, embedded in the very structure of the court the principle of deference to national tribunals. I suggest here that we should return to first principles and reassess the role of international criminal law and the international community from the ground up. Rather than considering post-conflict justice from the perspective of international courts and asking what role they might ideally play, I propose that we should examine carefully how international law has actually influenced domestic legal systems in post-conflict settings and develop justice models shaped from these realities. In so doing, I conclude that international courts have a useful role to play, but one that is substantially more circumscribed than that proposed by some supporters (and thus, I would argue, more in accord with the ICC’s original, complementarity-oriented design). Instead of relying primarily on international or even hybrid courts, I suggest that we should look to national courts as the primary venues for atrocity trials and to transnational networks as the best conduit for the international community and international criminal law to play a constructive role. To that end, in this Article I examine a particular set of interac- tions between the international legal community and the domestic legal system in the Democratic Republic of the Congo (“DRC” or “Congo”). The atrocities that have taken place in the DRC are at the heart of the controversy over the effectiveness of international courts. The International Criminal Court’s first trial, prosecuting a Congo- lese militia leader for war crimes for using child soldiers, was to have started in June 2008.9 Its jeopardized progress stands in the public eye 7 Compare Eric A. Posner & John C. Yoo, Judicial Independence in International Tribunals, 93 Cal. L. Rev. 1, 7 (2005) (arguing against independent international tribunals), with M. Cherif Bassiouni, The Time Has Come for an International Criminal Court, 1 Ind. Int’l & Comp. L. Rev. 1, 34–35 (1991). 8 See Burke-White, supra note 2, at 58; Turner, supra note 2, at 51. 9 Press Release, ICC, The Trial in the Case of Thomas Lubanga Dyilo Will Commence on 23 June 2008 (Mar. 13, 2008), available at http://www.icc-cpi.int/pressrelease_details& id=348&l=en.html. 4 Boston College Law Review [Vol. 50:1 as the first test of the ICC’s long-debated effectiveness.10 But there is more than this at stake for international criminal law in the Congo. The ICC’s Rome Statute has already had a tangible impact on trials within the DRC, where some domestic military courts have used the Statute in prosecuting defendants for war crimes and crimes against humanity.11 They are the first national courts in the world to apply the Rome Statute directly in criminal trials. Understanding how the Congolese courts came to deploy international law in these atrocity trials requires us to adopt a relatively com- plex model of the relationships between national and international courts and between national and international criminal law, one that embraces the indirect conduits, the highly individualistic and resource- intensive means, and the inconsistent results that characterize the real- ity of transitional justice in post-conflict settings. Key characteristics of this model include: (1) reliance on transnational networks to convey international criminal law and international resources into domestic settings, rather than on international courts; (2) hybrid international- national processes in which international actors play a supporting, rather than a controlling, role; and (3) integration of international support for atrocity trials into broader efforts to rebuild national judicial systems. ICC supporters might like to see the Rome Statute’s use in domestic courts in the Congo as evidence that the ICC has succeeded already in spreading its influence far beyond its own trials to the inner workings of national tribunals. This development, however, cannot be credited to the ICC itself, which has limited its activities in the Congo to pursuing and promoting its own investigations.

Load more