Over the last twenty-five years prosecutions of the most serious international crimes through international criminal tribunals and courts have emerged as a present but uneven reality on the global landscape. Through international and hybridized courts, the tribunals for the former Yugoslavia (ICTY), Rwanda, Sierra Leone, Cambodia and East Timor and ultimately the permanent International Criminal Court (ICC), practice and jurisprudence evolved into a significant fight against impunity for these crimes.
The first ad hoc tribunals and most others have closed down, leaving the permanent ICC, a smattering of hybridized tribunals and a handful of national courts actively addressing impunity for these crimes. The International Criminal Court, which emerged in the period of unprecedented judicial construction, now operates on a difficult global terrain as serious performance failings have come into sharp focus. What are the problems underlying these shortcomings? What role can the Court play? How will this permanent court manage the challenges it is facing?
This course will examine some of the key issues arising from the effort to render justice for crimes that have shocked the conscience of humankind. Through examining recent and evolving case law and practice, we will seek to understand the progress and problems as well as the prospects for the ICC which was envisioned to be the centerpiece of a fragile “system” of international justice.
To assess these questions and the Court’s key challenges, the readings and class discussion will drill down first into aspects of the Yugoslav war crimes tribunal’s practice. We will then proceed to examine similar issues at the ICC. The class will compare and contrast these judicial institutions with an eye to drawing lessons for the ICC’s rendering justice for genocide, crimes against humanity and war crimes today.
Specifically, we will explore--and compare--modes of establishment, substantive crimes, theories of individual criminal liability, expediting very lengthy proceedings and securing the arrest of suspects.
Students will be expected to weigh the relevant statutory provisions, rules of procedure, pertinent case law and interpretative history. Class members will be asked to identify key similarities and differences in the experience of these two judicial institutions and to reflect on the implications for the future of the ICC.