Academic journal article Washington and Lee Law Review

Deconstructing the Epistemic Challenges to Mass Atrocity Prosecutions

Academic journal article Washington and Lee Law Review

Deconstructing the Epistemic Challenges to Mass Atrocity Prosecutions

Article excerpt

Table of Contents

I. Introduction.................. 225

II. Location, Location, Location: The Evidentiary Implications of the Place Where the Crime Took Place.. . . . . . . . . . . . . . . . . . 231

A. Available Evidence....................232

B. Problematic Features of Available Evidence...................238

III. The Size, Scope, and Legal Characterization of the Crime...................243

A. Size Matters: The Fact-Finding Implications of Large-Scale Criminality...................244

1. The Context Surrounding Mass Atrocities: Armed Conflicts, Obstructionist Governments, and Evidentiary Implications...................245

a. Now or Later: The Dangers of Contemporaneous Prosecutions Versus the Losses Incurred by Delayed Prosecutions...................246

b. Governmental Interference in Prosecutions...................252

2. Fact-Finding Challenges Caused by Group Criminality...................254

3. The Coalescence of Location and Large-Scale Criminality...................262

4. Variations in Size, Scope, and Political Context...................269

B. The Legal Characterization of the Crime...................278

IV. At Home or Abroad? The Fact-Finding Impact of the Prosecuting Body...................283

V. Conclusion...................294

I.Introduction

International criminal law has the potential to be a powerful and effective means of deterring mass atrocities and imposing well-deserved punishment on those who perpetrate those atrocities. However, international criminal law also faces unprecedented challenges. Some of these challenges generate widespread publicity. The decision of three African states to withdraw from the International Criminal Court (ICC), for instance, made headlines worldwide,1 as did the high-profile battle between the ICC and Kenya's President and Vice President.2 Other challenges are less publicized but just as concerning. The challenge that forms the focus of this Article is the so-called "epistemic critique of international criminal law."3 That critique can take many forms. Some scholars, for instance, accuse international criminal judgments of exhibiting selective contextualization;4 other scholars question the ability of international criminal law to create a historical record;5 and still other scholars explore, more broadly and philosophically, the limits of the knowledge that we can attain about atrocities.6 My own scholarship launched one highly pragmatic strand of epistemic criticism by identifying pervasive and invidious obstacles to accurate fact-finding in international criminal proceedings.7

What neither I nor any other scholar has adequately explored, however, are the factors that give rise to these severe fact-finding obstacles. Do some prosecutions feature greater factual uncertainty and, if so, can we identify and isolate the causal factors? This article will tackle these questions, and in doing so, it will reveal the complexity and nuance that surrounds epistemic criticisms of mass atrocity prosecutions. This complexity and nuance derives largely from the complexity and nuance that surrounds mass atrocity prosecutions themselves. Most international criminal law scholarship, including my own, focuses exclusively on prosecutions of international crimes conducted by international courts or hybrid international-domestic courts,8 but many other possibilities exist. In addition to international and hybrid courts, mass atrocities are also prosecuted in a range of different kinds of domestic courts.9 Moreover, some mass atrocities are prosecuted as domestic crimes, whereas others are prosecuted as international crimes.10 Finally, mixing and matching takes place between the categories. A mass atrocity characterized as a domestic crime may be prosecuted in an international court,11 whereas a mass atrocity characterized as an international crime may be prosecuted in domestic court.12 Each of these variations has epistemic implications. …

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