Friday, February 6, 2009

Bellwether Trials

Peter Spiro and I had the pleasure of hosting IntLawGrrl Elena Baylis (pictured below right) this week at Temple's International Law Colloquium. Elena presented her current work-in-progress, Bellwether Trials: From Mass Torts to Mass Atrocities, on which Peggy McGuinness (pictured below left) commented. Refreshingly short by design, the paper suggests a useful role for internationalized criminal courts from the perspective of one who shares my healthy skepticism of the ability of ad hoc, hybrid and permanent courts to positively impact post-conflict states.
Elena starts from the assumption that the goal of post-conflict justice should be to further the affected society's interests, which often point in directions different from internationalized criminal courts. She notes that the construction of a viable justice system is often a high priority for those who have suffered mass atrocities, and suggests that the most useful role for internationalized criminal courts may be to assist in this project. Many of these ideas are laid out in Elena's forthcoming publication, Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks; the Bellwether Trials piece simply offers a practical role for internationalized criminal courts -- to hold bellwether trials that can assist national courts in trying perpetrators of mass atrocities. While she recognizes that there are due process concerns with this approach, Elena rightfully suggests that these problems exist currently, and her proposal puts us no worse off than where we are today.
Peggy and others suggested that we've already seen internationalized criminal courts play a bellwether role, in Nuremberg and the Eichmann trial. While that idea holds appeal, I remain uncertain about the role of courts in post-conflict justice in less legally oriented societies. Moreover, the discussion brought me back to the fundamental critique expressed so eloquently by Karl Jaspers, that "something other than law is at stake here, and to address it in legal terms is a mistake." Elena's point that these institutions are already here, for better or for worse, and we should make the best use of them we can, is a good one, but it may be that we should be pushing for more radical changes in post-conflict justice. In any case, her pieces provide an engaging and thoughtful guide through the field of post-conflict justice.

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