Elena Baylis on International Criminal Courts
Professor Elena Baylis has posted a new article on SSRN, “Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks.” From the abstract:
This Article argues that transnational networks of UN officers, NGOs, embassy officials, and local judges and attorneys offer an effective way for the international community to contribute to justice in post-conflict states by supporting national trials, facilitating the use of international criminal law, and investing in the national court system. I consider the role of international criminal law in post-conflict justice through an appraisal of the first national courts to use the International Criminal Court's Rome Statute directly in trials for war crimes and crimes against humanity. International criminal law was not incorporated into these cases through traditional mechanisms, such as legislative implementation or consideration of international jurisprudence, or even through the direct involvement of the ICC. Rather, the use of international law and the trials themselves were spurred by the work of transnational networks on the broader goals of post-conflict justice and rebuilding the national justice system. Theories of international lawmaking, such as theories of global governance, transnational networks, transnational legal process, policy-oriented jurisprudence, and legal pluralism, focus our attention on the critical aspects of these networks that enabled them to convey international law effectively in a chaotic post-conflict context, in particular, hybrid processes and domestic control. I do not suggest that the international community should support all national trials without distinction, but I do contend that it is only by investing in weak, corrupt, and deeply flawed national courts that the international community can promote what should be the ultimate goal of post-conflict justice efforts: rebuilding national justice systems. All in all, these cases suggest a model for international involvement in post-conflict justice. Key characteristics include: (1) reliance on transnational networks to convey international criminal law and resources into national settings; (2) hybrid processes in which international actors play a supporting role; and (3) integration of international support for atrocity trials into broader efforts to rebuild national judicial systems.