Meron examines the efficacy of international criminal justice

Judge Theodor Meron, Charles L. Denison Professor of Law Emeritus and Judicial Fellow, attracted a full house to the Law School for his February 11 lecture, “International Criminal Justice: Does It Work?” Meron, a judge of the International Criminal Tribunal for the Former Yugoslavia (ICTY), laid out the functions, accomplishments, and challenges of international criminal courts as he made a case for the importance of international criminal justice.

Meron pointed to the dramatic burgeoning of international criminal courts as an indication of their significance. As recently as 20 years ago, he said, such venues were virtually nonexistent: “International criminal justice was, at that time, largely the memory of Nuremberg.” But in the early 1990s a series of horrific acts, particularly ethnic cleansing in the former Yugoslavia, brought the need for international criminal proceedings to the fore, and the ICTY was established. The International Criminal Tribunal for Rwanda followed soon after, and the Special Court for Sierra Leone and the International Criminal Court (ICC) were formed in the ensuing decade.

These new international criminal courts have faced daunting obstacles, Meron said. Despite successful prosecutions, international judicial bodies are in a delicate position. “The tribunals are entirely dependent on the good will of nation-states,” Meron said, adding, “Recent successes cannot hide the fact that the tribunals remain extraordinarily dependent on actors outside their control to execute warrants, save for the few individuals who turn themselves in voluntarily.” Another problem is lack of participation in these institutions; 70 percent of the world’s population does not live in an ICC member state.

Despite these challenges, he said, international criminal tribunals have done much to define how international criminal justice looks in practice. “There is a world of difference between the rudimentary due-process norms of Nuremberg and the meticulous attention to due process in the tribunals.... It took the development of rules of procedure and evidence and the vital judicial gloss provided by the jurisprudence of the tribunals to create a credible, viable body of international criminal law capable of being applied by courts of law.”

The international criminal courts cannot, however, do the judicial work alone, Meron said: “The tribunals, despite their precedent-setting importance, will never have sufficient material and political support to prosecute more than just a few of the many international crimes that take place. National courts will have to carry the burden of trying most international crimes.” Of the U.S. in particular, Meron expressed optimism about its potential to prosecute international crimes, citing Barack Obama’s disavowal of torture and the decision to close Guantánamo. Even before the new administration took power, Meron said, the U.S. had been “doing a reasonable job of prosecuting rank-and-file members of its military who commit international crimes, though not in prosecuting higher-ranking individuals.... I believe this record will improve.”

The jury is still out, Meron said, on international criminal justice’s ability to actually deter crimes: “It is hard to measure what does not occur, and the tribunals do not exert influence in a vacuum.” He took some encouragement, however, from several hopeful signs, including indications that many militaries are scrutinizing their targets more carefully to avoid legal repercussions.

If the world has not reached the end of the path to justice, Meron concluded, at least it is on the right track: “In record time, international criminal justice has emerged as a key advancement in the long fight to end impunity, enforce accountability, and establish international rule of law. This is an achievement that humanity can be proud of.”