International Idealism Meets Domestic-Criminal-Procedure Realism

Though international criminal justice has flourished over the last two decades, scholars have neglected institutional design and procedure questions. International-criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law\u27s main purpose should be not only to inflict retribution but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, stable career paths, and civil-service expertise. It should also draw on the American experience of federalism to cultivate cooperation with national authorities and select fewer cases for international prosecution. Revised plea bargaining and sentencing rules could learn from American experience and pitfalls, husbanding scarce resources and minimizing haggling, yet still buying needed cooperation. Finally, in blending adversarial and inquisitorial systems, international criminal justice has jettisoned too many safeguards of either one. It should reform discovery, speedy-trial rules, witness preparation, cross-examination, and victims\u27 rights in light of domestic experience. Just as international criminal law can benefit from domestic realism, domestic law could incorporate more international idealism and accountability, creating healthy political pressures to discipline and publicize enforcement decisions

International Idealism Meets Domestic-Criminal-Procedure Realism

Though international criminal justice has flourished over the last two decades, scholars have neglected institutional design and procedure questions. International-criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law\u27s main purpose should be not only to inflict retribution but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, stable career paths, and civil-service expertise. It should also draw on the American experience of federalism to cultivate cooperation with national authorities and select fewer cases for international prosecution. Revised plea bargaining and sentencing rules could learn from American experience and pitfalls, husbanding scarce resources and minimizing haggling, yet still buying needed cooperation. Finally, in blending adversarial and inquisitorial systems, international criminal justice has jettisoned too many safeguards of either one. It should reform discovery, speedy-trial rules, witness preparation, cross-examination, and victims\u27 rights in light of domestic experience. Just as international criminal law can benefit from domestic realism, domestic law could incorporate more international idealism and accountability, creating healthy political pressures to discipline and publicize enforcement decisions

The International Criminal Court And The Future Of Legal Accountability

With unexpected speed, the International Criminal Court has become a reality

Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of Justice

When the International Criminal Court (ICC) was established in 2002, States, NGOs, and the international community had extraordinarily high expectations that the Court could bring an end to impunity and provide broad-based accountability for international crimes. Nearly five years later, those expectations appear unfulfilled, due to political constraints, resource limitations, and the inability of the ICC to apprehend suspects. This article offers a novel solution to the misalignment of resources, expectations, and legal mandate of the ICC, arguing that the Court must more actively engage with national governments and encourage States to undertake their own prosecutions of international crimes. The article shifts basic understandings of the ICC’s role through a policy of Proactive Complementarity, whereby the international Court would encourage and, at times, assist States undertaking domestic prosecutions of international crimes. The article examines the legal mandate for such a policy, considers the political constraints on the Court, offers a practical framework for the implementation of Proactive Complementarity in the range of circumstances the ICC is likely to face, and documents early examples of Proactive Complementarity in the ICC’s initial operations. Overall, the Article argues that encouraging national prosecutions within the “Rome System of Justice” and shifting burdens back to national governments offers the best and perhaps the only way for the ICC to meet its mandate and help end impunity