Nationalizing International Criminal Law

Abstract

International law scholars often assume that the best way to enforce human rights is by establishing strong international institutions that develop the law progressively and enforce it independently. Political realists counter that such institutions are only as useful as powerful states permit them to be, and discourage expansive visions of their mandate. Partisans of the recently created International Criminal Court (ICC) must come to terms with the realist challenge. They must work to adapt the institution accordingly, without abandoning hope for the project altogether. Although the ICC will be constrained by the state support it commands, it can make a difference in the enforcement of human rights law by encouraging and assisting national authorities in upholding and enforcing international law. The ICC and its supporters must decide how the institution will use the powers it has. This Article argues that if the Court pursues a path of centralization and insularity, it will encounter resistance from member states and from the United States and bring about few of the benefits of reconciliation and institution-building that its founders envisioned. If the Court engages in joint investigations and trials with national authorities, along the model of mixed courts already in use in Sierra Leone and East Timor, enforcement of international criminal law will become more agreeable to the participating states, who will feel a sense of ownership and control over the process. In this new, less dominant role, the Court might even become acceptable to the United States whose support is critical for the Court's effectiveness. The mixed-court model for the ICC holds out the promise of strengthening local capacities and contributes to the rebuilding of the rule of law in nations around the globe. It would move international human rights law in directions that its true friends must admit are ultimately wise and necessary - toward a system of law that is better informed, more widely accepted, and better enforced.