Title: The Persuasive Authority of Internationalized Criminal Tribunals
Abstract: I. INTRODUCTIONInternational and internationalized1 criminal tribunals have multiple aims. These include not only their core function of trying cases, but also other, broader objectives, such as developing the legal standards of the field of international criminal law, incentivizing states to pursue transitional justice mechanisms, and achieving sociopolitical impact in the concerned post-conflict states. While international criminal tribunals initially behaved as though achieving these other aims might flow naturally from their work on their cases, it has since become evident that these objectives require attention in and of themselves. in this article, i argue that future internationalized criminal tribunals should refocus more of their efforts to pursue these goals on a natural conduit with underutilized potential: influencing national courts in post-conflict states. internationalized tribunals could exponentially expand the effect of their judgments in postconflict societies if national judges in the concerned post-conflict states were to regularly consider those judgments and treat them as persuasive authority when deciding their own cases. This is the most ordinary, well-accepted way that courts influence each other and, eventually, society at large: by issuing rulings that are then adopted or adapted by other courts. it is thus a core part of internationalized tribunals' role as courts. In so doing, internationalized criminal tribunals could become what we might call bellwether2 courts: courts who are norm leaders in a particular field, whose reasoning and decisions are influential on other tribunals not because they must be followed, but because other courts choose to follow them.Effectively operationalizing this function is, however, a complex task, both conceptually and practically. Internationalized tribunals and domestic post-conflict courts have only a very limited formal relationship with each other, so that any such mechanism of rapprochement would be entirely voluntary. Internationalized criminal tribunals' cases and the processes by which they are heard are highly complex, so that influence on national courts cannot be the sole or even the primary consideration in most internal decisions concerning case management and judgment. International criminal trials and post-conflict legal systems are inevitably attended by messy socio-political circumstances that further complicate the functioning of the concerned legal institutions and any attempt at developing transnational relationships between courts. In addition, internationalized criminal tribunals often suffer from a legitimacy gap vis-a-vis constituencies in the concerned post-conflict states. Finally, internationalized criminal tribunals, like other courts, are primarily designed to try cases.3Accordingly, I propose that internationalized tribunals could expand their engagement with post-conflict national courts in two ways. First, internationalized criminal tribunals should do more. Future internationalized courts could make relatively minor, discrete internal design choices that would make their judgments more accessible and useful to national actors trying atrocity cases. This would enable a form of transjudicial dialogue4 between national and internationalized criminal tribunals that is based in the core function of courts as decision-makers and capitalizes on internationalized tribunals' particular expertise and resources. In addition, they should target their direct engagement with national courts where it will have the most impact, in peer-to-peer contacts with judges, prosecutors, and other national court actors.Internationalized criminal tribunals should also do less. They should outsource other aspects of the process of influencing national courts through persuasive authority to the extensive rule of law networks that operate in post-conflict countries. Such networks can offer the benefit of direct contacts with national actors and institutions as well as expertise in working with those institutions; these networks also have an interest in promoting successful national atrocity trials as part of their rule of law agenda. …
Publication Year: 2017
Publication Date: 2017-05-30
Language: en
Type: article
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