International Idealism Meets Domestic-Criminal-Procedure Realism

By Bibas, Stephanos; Burke-White, William W. | Duke Law Journal, January 2010 | Go to article overview

International Idealism Meets Domestic-Criminal-Procedure Realism


Bibas, Stephanos, Burke-White, William W., Duke Law Journal


ABSTRACT

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's 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' 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.

TABLE OF CONTENTS

Introduction

I. Comparing Domestic and International Criminal Procedure
     A. The Functions of International and Domestic Criminal Justice
     B. The Purposes of Criminal Law
     C. An Overview of the Two Systems
        1. International Criminal Justice
        2. Domestic Criminal Procedure

II. The Mentality of International Justice Practitioners
     A. Ideologies and Worldview
     B. Career Opportunities and Loyalties

III. The Politics of International Justice
     A. Appointments and Elections
     B. State Cooperation
     C. Funding
     D. Defense Resources

IV. Improving International Case Management
     A. Gatekeeping and Case Selection
     B. Plea Bargaining and Caseloads
     C. Sentencing

V. Pretrial and Trial Procedures
     A. Melding Adversarial and Inquisitorial Process
     B. Discovery
     C. Trial Procedures
     D. Victims' Rights

Conclusion

INTRODUCTION

After the world had spent years and millions bringing him to court for genocide and war crimes, Slobodan Milosevic cheated justice. The butcher of the Balkans died unexpectedly in his holding cell in 2006, as his four-year trial was drawing to a close but before verdict and sentence. Proceedings were slow and costly; as of Milosevic's death, hundreds of people had been charged but only dozens had been convicted, clogging the International Criminal Tribunal for the Former Yugoslavia (ICTY). (1) By pursuing exhaustive justice against his henchmen, the ICTY had denied Bosnian Muslims, Croats, and Serbs the most basic justice of seeing Milosevic convicted and punished swiftly and publicly.

Milosevic's case, although extreme, is not unique. (2) It epitomizes deeper problems with international criminal justice. Fired by idealism and the laudable legacy of the post-World War II Nuremberg Tribunal, the United Nations (UN) and Western nations began setting up international criminal tribunals in the early 1990s. In 1993 and 1994, the UN Security Council created the ICTY and its sister court, the International Criminal Tribunal for Rwanda (ICTR). (3) The UN, in cooperation with national governments, created other hybrid tribunals that blend international and domestic legal approaches in partnerships with nations such as Sierra Leone, Lebanon, Cambodia, East Timor, and Bosnia. (4) In 2002, the Rome Statute created the first permanent international criminal court, the International Criminal Court (ICC). …

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