"De-jeopardizing justice": domestic prosecutions for international crimes and the need for transnational convergence.

Author:Wible, Brent

INTRODUCTION

How should we feel about prosecuting Pinochet in Spain, Habre in Senegal, or Sharon in Belgium? Ambivalent. Even those who look most favorably on international criminal law and its potentially positive impact on human rights suffer conflicting responses to universal jurisdiction. The idea that some acts are so terrible as to compel international attention and an international solution satisfies our sense of justice. At the same time, something seems amiss when a defendant stands trial in country X for acts committed thousands of miles away. Victims in the home country often resent that their history is put on trial abroad, (1) and citizens of prosecuting states question why they should meddle in another country's affairs.

These tensions subject national prosecutions for international crimes to great scrutiny, opening the proceedings' legitimacy to question. The fact that these national proceedings are often idiosyncratic raises even more questions. Many international crimes are inadequately defined, leaving domestic courts leeway to fill in details, and it is rarely clear which procedural rules apply. Which punishments apply--those pertaining in the trial state or those of the state where the crime was committed--also remains a contested issue.

Universal jurisdiction will never be perfect; neither will people ever feel completely at ease with a borderless system of international criminal law. The sense of inequity resulting from courts in the north sitting in judgment on leaders from the south is most likely insurmountable in a world of asymmetrical power. (2) The potential for states to use universal jurisdiction prosecutions as a political tool of interstate conflict will remain. (3) Likewise, those who believe that "trials from without" miss the point, by speaking to the wrong audience and failing to respond sensitively to a country's political reality, will never be content with universal jurisdiction. (4)

Despite these endemic concerns, work can be done insofar as prosecutions under universal jurisdiction suffer from a lack of authoritative legitimacy and integrity as a legal matter. International mechanisms need to be put into place so that its exercise will be firmly grounded in international process. Domestic courts should incorporate as much international law, including both substantive and procedural standards, as possible into prosecutions for international crimes. They must engage in a structured international judicial dialogue along both vertical and horizontal dimensions to insure the development of consistent practices. While universal jurisdiction will never be perfect, it will be substantially better if informed by well-developed international standards.

Some scholars suggest that since few states are willing to prosecute non-nationals for atrocities committed abroad, a universal jurisdiction subject to prudential concerns will over-deter prosecutions under international law. (5) If it appears legitimate and has integrity, however, states may be more likely to exercise universal jurisdiction. As a step_toward this goal, it is important to narrow the gap between the theoretical application of universal norms and the variation across jurisdictions that exists in practice. National prosecutions for international crimes will have greater integrity and legitimacy, and the authority of international criminal law will benefit from transnational convergence. The resultant growth of international norms should increase accountability for terrible acts, deter the kind of atrocities that marked the twentieth century, and contribute to a greater degree of human dignity.

Part I of this article explores the difficulties that arise from application of universal norms in domestic courts without a harmonizing structure. Part II argues that the informal mechanisms that could influence exercise of universal jurisdiction and deter the most divergent practices are ineffective. Part III examines some of the costs of universal jurisdiction. The article concludes by suggesting some approaches for structuring an international criminal system that would allow domestic courts to play a central role without divesting universal norms of their international character.

  1. The Peculiar Difficulties of Prosecuting International Crimes in Domestic Courts

Many international crimes are loosely defined. Even where a convention has been adopted, as in the case of genocide and torture, many of the details are left to national jurisdictions. (6) The applicable procedural rules are not mentioned in these instruments, and the non-hierarchical assembly of international tribunals and national courts applying this body of law reach different conclusions operating under different procedures. (7) While some divergence among the jurisdictions prosecuting these crimes is inevitable, is it desirable that states be allowed to define procedures, and in large part, the crimes themselves? Is such proliferation pathologic in a system based on international norms? The difficulty arriving at a particularized set of rules in international criminal law became clear during the Treaty of Rome negotiations. (8)

This section seeks to determine some limitations on the divergence of substantive prohibitions and procedural rules across jurisdictions. In the extreme, different procedural rules and judicial interpretations of definitions could so stretch the substance of the law as to raise the ex post facto issue. Precision in criminal prohibitions, like retroactivity, is a window onto the fairness and integrity of international criminal proceedings. National divergence must be adequately constrained so that prosecutions do not amount to and are not perceived as "victors' justice."

Some scholars hint that the lack of precision in international criminal law was consciously intended to deter a whole category of behavior rather than encouraging actors to legalistically tailor their actions in compliance with the law. (9) Regardless, the argument does not go to the question of procedural protections and the divergence of procedural rules that might lead to substantively different crimes across jurisdictions.

  1. Specificity in International Criminal Law: Analogy to the Common Law

    Scholars argue that international criminal law cannot be precise. (10) Rather, it develops necessarily like the common law, gradually applying the principles of previous decisions to new situations. (11)

    The expectations of specificity in international criminal law cannot, however, be the same as in national criminal legislation.... International law, like common law, develops gradually on the basis of states' practices, conventions, and other manifestations of customary law, which in some cases also include "general principles of law." (12) Analogizing international criminal law to the common law poses a number of problems. The specificity question cannot be swept away by analogizing to a highly contested category--the common law crime. Nonetheless, the analogy to the common law raises interesting issues relating to precision that are unique to international law.

    Since international criminal law develops largely through conventions, which tend to lack specificity, and cases, as the recent history of the International Criminal Tribunal for the Former Yugoslavia (ICTY) (13) and International Criminal Tribunal of Rwanda (ICTR) (14) indicate, does the non-hierarchical structure of courts considering international criminal law pose any difficulties? Given a range of prior decisions from different courts and tribunals, is it easy for a court to disregard, distinguish, or rely only on cases it wants to? (15) The notion of stare decisis has historically been foreign to international law. (16) In the traditional positivist framework, there could be no binding precedent because parties had to submit to an international court's jurisdiction to hear a particular case. (17) While the positivist understanding of international law is no longer as dominant as it once was, international criminal law presents some novel problems in terms of precedent.

    With so many criminal tribunals, separated by space, time, and historical context, precedent poses greater difficulties than at the ICJ, which has institutional continuity at least. The potential for divergence increases when domestic courts try defendants under universal jurisdiction. Limited attempts to impose hierarchy on the international criminal system have been made. For example, the ICTY and the ICTR share a common appeals chamber and theoretically apply consistent law. (18) Moreover, the ad hoc tribunal in Sierra Leone is required to follow ICTY and ICTR precedent. (19) There will be no common appeals chamber, however, and no formal mechanism to ensure consistency. (20)

    Harmonization could be imposed with common law crimes in a hierarchical judicial system, but no such overarching authority exists in international law. The provisions to encourage uniformity among the ad hoc tribunals will not effect domestic prosecutions under universal jurisdiction. With domestic courts, the informal mechanism of judicial globalization (21) is the only thing akin to precedent that currently encourages harmonization of international criminal procedure and interpretations of the substantive law. At least one scholar considers the trend toward harmonization of procedural and evidentiary rules to be robust. (22) Leaving aside the question of whether or not a convention creating a system of binding precedents is politically feasible, such a system would remain unenforceable in the absence of a supranational adjudicative body with appellate criminal jurisdiction.

  2. Dealing with Imprecision: Fair Trial Standards and Judicial Integrity

    International law recognizes a number of fair trial standards. (23) These standards set a baseline of procedural fairness without confronting the subtler questions of the specificity of international criminal law...

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