International Criminal Court’s efficacy debated


This weekend at HLS, three distinguished panelists debated the creation of a global criminal justice system as part of the Colloquium on International Affairs. The debate came three days after the creation of an International Criminal Court (ICC), a permanent tribunal that is to judge those accused of war crimes and crimes against humanity.

Professor Anne-Marie Slaughter, who moderated the discussion, remarked on the “enormous” growth of international tribunals and the increasing horizontal and vertical relationships between national and international legal institutions.

Two panelists agreed that an international justice system was inevitable. Yale Law Professor Harold Koh explained that it is “counterproductive” to work against this trend and that we should instead seize the opportunity to shape the system, so it would be “idiotic” for us to unsign the ICC treaty.

Rita E. Hauser, president of The Hauser Foundation (which brought us Hauser Hall), predicted that the international system would be shaped through an “unfortunate series of fits and starts,” depending on our administrations. Hauser characterized the battle for an international criminal system as political, not legal, and she explained that former President Clinton signed the ICC treaty in the final days of his administration precisely to avoid politics. Hauser was confident that “continuing pressure” from other countries would force us to ratify the treaty.

Pierre-Richard Prosper, the U.S. State Department’s Ambassador-at-Large for War Crimes Issues, was the only panelist who argued against American involvement in the ICC. He stressed that even what he termed “aggressive” engagement in the treaty negotiations had failed to produce adequate safeguards, and the Court still lacked political oversight. Rather than focusing on international tribunals, Prosper argued that we should be working to rebuild the domestic court systems of affected countries so that they can try their own war criminals. For instance, putting $100 million towards the reconstruction of Rwandan domestic systems may be preferable to placing them in the current ad hoc war crimes tribunal.

Koh also argued that terrorists should be tried internationally, rather than “in house” by military tribunals, because the appearance of prejudice is as important as actual prejudice, and because we cannot credibly employ military tribunals after repeatedly criticizing their use by other countries. Prosper replied that it is “prejudice” to assume that military tribunals are “automatically unfair.” He argued that their fairness hinges on procedure, and that the United States has never opposed the form but only the procedures employed by foreign countries.

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