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A panel of new scholars explored what the next generation of international criminal law will look like. Professor Beth Van Schaack, Stanford Law School, convened the panel and moderated the discussion.
Rebecca Hamilton, Columbia Law School, argued for an approach to international criminal law (ICL) that recognizes the state-enabled nature of many international crimes. She critiqued the current bifurcated structure of adjudicating international crime, with one set of laws, processes and courts for adjudicating individuals, and another set for evaluating state responsibility. This approach gives us a distorted and incomplete picture of how crimes are committed. An integrated adjudicative process, in which individual and state responsibility are assessed concurrently, would be more fair for defendants, better for victims, and more aligned with the broader goals of ICL (such as reconciliation). She suggested how an integrated process could be worked into the existing structure of the International Criminal Court (ICC): The focus would remain on the defendant’s criminal trial, but more evidence of state policy and practice would be introduced. A finding of state responsibility could then be made at the reparations stage, which would involve a lesser burden of proof. That finding could then be reflected in the reparations award; state responsibility could both increase the financial reparations available to victims and pave the way for more creative and holistic reparations awards that only states can provide, such as memorials or formal apologies.
Hassan Ahmad, University of California, Berkeley Law, also looked at how the ICC could expand its mandate to develop more complete accounts of international crime. He argues that the Prosecutor and the Pre-Trial Chamber should look to the broader “context” of alleged crimes in determining whether the ICC should assert jurisdiction over a situation. Specifically, he posits that the Prosecutor can consider evidence beyond the temporal and geographical limits of the Court’s jurisdiction in evaluating, for example, whether an attack is of sufficient gravity. He gathers examples from other tribunals where the courts considered extra-temporal or extra-geographical evidence because it was nonetheless relevant and probative to establishing the broader context of the crime. Procedurally and textually, he argues, the Rome Statute provides sufficient flexibility to enable consideration of such evidence. Procedurally, what he terms the “funnel approach” (from the breadth of preliminary examinations to the specificity of individual arrest warrants) allows for differential treatment of evidence at different stages of proceedings: contextual evidence may help establish gravity at a threshold level even if it may not be admissible in individual trials. Textually, the open-ended nature of key terms like “gravity” and the “interests of justice” invites a more holistic account. This more contextual approach would help avoid jurisdictional gaps and may encourage the Court to bring a wider range of cases.
Steven Koh, Department of Justice, introduced the idea of “criminal convergence” within U.S. criminal law. He argued that there is an evolutionary trend towards U.S. law integrating with international and foreign law across the full spectrum of criminal legal process: investigation, charging, trial, sentencing and appeal. He contrasted this evolutionary view with a more mechanical or dualist perspective where international law is excluded from domestic law unless positively integrated within it. Even where there appears to be a domestic obstacle to convergence with international law, the practice of criminal law will eventually lead to a workaround solution, perhaps involving different governmental actors or informal networks. He suggested that this “middle tier” of transnational criminal process will increasingly encroach on the purely domestic and purely international frameworks of criminal law.
Shiri Krebs, Stanford Law School, posed a puzzle: Is there a better way to frame the results of fact-finding missions so as to avoid the relevant publics from rejecting them as non-credible? She critiqued ICL’s adversarial framework as operating on the basis of binary distinctions - us/them, right/wrong, just/unjust - that triggers societal biases and thus resistance and rejection in a way that other, non-legal concepts of “truth” (e.g., narrative truth or sociological truth) might not. This rejection can in turn make international law less effective in mobilizing domestic responses and resolving tensions in post-conflict situations. To test this hypothesis, she designed an online survey posed to 3000 U.S. nationals that described a scenario involving U.S. Marines in Afghanistan who killed four civilians. She varied the survey account as concluding that the Marines had violated international law, that they had not violated international law, that they had violated moral standards, and that they had not violated moral standards. She then measured the perceived credibility of the report (whether the reader believed the Marines should be prosecuted or the civilian families compensated) and found that the framing mattered. Conservative readers were more likely to believe the account if the Marines were absolved of culpability; liberals if they were accused of culpability. But more significantly, both sets of readers were less likely to accept the verity of the account if war crimes terminology was used. That is, readers were overall more willing to prosecute or compensate when the Marines were found to have violated moral standards rather than international law. In sum, she concluded, legal condemnation (such as the typical findings UN factfinding missions) may not help mobilize domestic audiences towards reconciliation.
Maggie Gardner is a Climenko Fellow and Lecturer on Law at Harvard Law School. Her most recent article, Parochial Procedure, is forthcoming in the Stanford Law Review.