The theory of transgovernmental networks describes how government officials make law and policy on issues of global concern by coordinating informally across borders, without legal or official sanction. Scholars have argued that this sort of coordination is useful in many different areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law. One area to which the theory has not yet been applied is international criminal law. For a number of reasons, until recently, international criminal law had not generated the same transgovernmental networks that have emerged in other fields. With few exceptions, international criminal law had been enforced at either the purely domestic or the international level. That picture appears to be changing. Investigators, prosecutors, and judges dealing with international crimes are beginning to collaborate, both with their peers across borders and with their counterparts at international criminal tribunals. This Article describes and evaluates these developments and provides a conceptual defense of why networks could be useful in international criminal law. It then suggests what future forms this sort of cooperation might take and draws implications from the emergence of international criminal law networks for the study of networks more generally.
TABLE OF CONTENTS I. A NEW WORLD ORDER OF TRANSNATIONAL NETWORKS II. THE CONCEPT OF TRANSGOVERNMENTAL NETWORKS IN INTERNATIONAL CRIMINAL LAW III. PROMOTING INTERNATIONAL CRIMINAL LAW NETWORKS IV. EMERGING INTERNATIONAL CRIMINAL LAW NETWORKS A. Coordination and Support Networks 1. Investigative Networks 2. Prosecution Networks 3. Judicial Networks B. Joint Action Networks V. POSSIBLE OBJECTIONS TO INTERNATIONAL CRIMINAL LAW NETWORKS A. Inconsistent Application of the Law B. Lack of Transparency and Accountability C. Dominance of Networks by a Few Powerful Countries VI. IMPLICATIONS FOR OTHER TRANSGOVERNMENTAL NETWORKS CONCLUSION The theory of transgovernmental networks describes how elements within the governments of various nations make and affect policy by coordinating with each other informally, without official or formal legal sanction. (1) Anne-Marie Slaughter and others have argued that this sort of coordination is useful in many different areas of cross-border regulation, including banking, antitrust, environmental protection, and securities law. (2)
One area to which the theory has not yet been applied is international criminal law. By its nature, international criminal law transcends national boundaries. But at least until recently, it had not generated the kinds of informal transgovernmental networks that have emerged in other fields. Except for a few recent collaborations among international and national prosecutors and judges serving on hybrid courts, international criminal law has largely been enforced at either the purely domestic or the international level.
The picture appears to be changing, however. Investigators, prosecutors, and judges dealing with international crimes are beginning to collaborate, both in horizontal networks across borders and in vertical networks with their counterparts at the international criminal tribunals. This Article describes and evaluates these developments and concludes that they are likely to transform the way international criminal law is implemented. These new mechanisms of interpreting, developing, and enforcing international criminal law ought to be welcomed, as they are likely to be more inclusive, more acceptable to domestic populations, and ultimately more effective.
When I use the term "international criminal law," I am referring to the handful of actions that the international community has seen fit to "criminalize" at the international level--war crimes, crimes against humanity, and genocide. These areas have become the subject of an international criminal law first because of their scale, severity, and gravity--in other words, the degree to which they shock the conscience of the entire world. Second, they often share the characteristic of being crimes that implicate governments themselves (or other groups that exercise political power), leading to the concern that the pertinent national authorities will be unwilling or unable to address the crimes at the national level.
International crimes are, unfortunately, still common around the globe. In the 1990s alone, almost one million people were murdered during the genocide in Rwanda, and hundreds of thousands more were killed or abused in conflicts in the former Yugoslavia, Sudan, Uganda, East Timor, Sierra Leone, and the Congo, among others. Serious human rights violations that could be classified as international crimes still occur frequently in dozens of countries around the world.
Enforcement of international criminal law has normally taken one of two courses. The first is prosecution and adjudication by an international tribunal, such as the Nuremberg tribunal, the International Criminal Tribunals for Rwanda and the former Yugoslavia, and the International Criminal Court. The second method has been prosecution and adjudication in a national court, whether under theories of universal jurisdiction or by the states directly affected by the crimes.
What had not occurred until recently--at least not to a significant degree (3)--is the appearance of networks of elements in national governments working together informally to enforce, interpret, and develop international criminal law. Over the last two decades, the development and interpretation of international criminal law has been occurring primarily in a centralized fashion at international tribunals, and its enforcement has proceeded largely through diplomatic channels.
But the reliance on international tribunals raises obvious concerns about infringements on national sovereignty. It presents a particularly acute example of what Slaughter calls the "globalization paradox"--needing government at an international level, but fearing it at the same time. (4) This paradox is reflected in current debates about the International Criminal Court. On the one hand, the International Criminal Court lacks support among key countries that have the power to make the court truly effective, especially the United States. As a result, the enforcement of the court's orders, which depends entirely on cooperation by state authorities, will likely be slow and often ineffective. On the other hand, some of the most serious human rights violations will remain unaddressed unless some action is taken at the international level.
Transgovernmental networks could offer an effective response to the "globalization paradox" in international criminal law. These networks would involve national and supranational judges, prosecutors, and investigators who would coordinate and cooperate with each other in more flexible and informal ways than they currently do in international criminal tribunals. The cooperation could occur in hybrid courts, through ad hoc agreements, and through different kinds of international and regional associations. Their mission could be supported by non-governmental organizations ("NGOs"), which are already very active in international criminal law.
Such transnational networks could serve a two-fold purpose. They could remedy national authorities' lack of capacity to enforce international criminal law by contributing some of the combined resources and expertise of network participants. At the same time, because of their flexible and decentralized form, networks could better accommodate local political preferences and enable nations most directly affected by atrocities to play a more central role in prosecuting them.
Transgovernmental networks are less likely to be effective in situations in which local authorities are reluctant to prosecute. But even in these cases, networks could gradually nudge governments toward action. They could provide the necessary support to make prosecutions more cost-effective. In addition, they could subtly influence domestic norms by connecting with individual investigators, prosecutors, and judges, who could advocate internally for war crimes prosecutions consistent with network standards.
While networks might have various beneficial effects, the strategic structure of international criminal law does not, at first sight, seem conducive to their creation or ultimate success. Violations of international criminal law do not commonly produce externalities that would spur states unaffected by the crimes to cooperate in redressing them. For instance, American officials are more likely to provide international assistance for the enforcement of antitrust law than of war crimes law. This is because the lack of antitrust enforcement in another country may directly harm American commercial interests, whereas crimes such as genocide and crimes against humanity, as grave as they are, may not have significant effects beyond one country's borders. And while international crimes usually occur in sporadic crises, other violations that networks address tend to be ongoing problems.
Collaboration is also difficult because views on important international criminal law questions diverge. While states may agree that core international crimes like genocide should be punished and prevented, they often disagree about the scope of international criminal law and about the procedures by which it should be implemented. These disagreements are sometimes based on fundamentally different moral judgments--about, for example, the applicability of the death penalty to international crimes or the prosecution of juvenile offenders. At other times, they result from diverging national security priorities. Neither of these types of disagreements could easily be settled through the informal exchanges that occur in transgovernmental networks. Nor could they be resolved through appeals to expertise, as can sometimes be done in conflicts about...