The Complexity of International Criminal Trials Is Necessary

Abstract

There is a widespread belief among both academics and policymakers that international criminal trials are too complex, and tribunals have come under enormous pressure to reduce the complexity of their trials. So far, however, changes to the procedure have not meaningfully affected trial complexity. This Article explains why these changes have failed and argues that the complexity of international criminal trials is necessary for them to fulfill their purposes. Using a multiple regression model of the factors driving trial complexity at the International Criminal Tribunal for the former Yugoslavia (ICTY), this Article shows that the largest drivers of complexity are two factors that courts cannot control: the accused’s seniority within the political or military hierarchy and whether the accused is a direct perpetrator. The complexity of international criminal trials appears to be driven by the need to attribute responsibility for serious violations of international criminal law to accused who are often both organizationally and geographically distant from the crimes they are alleged to be responsible for. Attribution of responsibility is a necessary feature of most international criminal trials, and complexity associated with this process cannot be easily eliminated. The Article considers some ways that complexity could be significantly reduced – for example by making international criminal law violations strict liability offenses – but they all come with serious drawbacks that would probably undermine the purposes of international criminal justice. Ultimately, it appears that international criminal trials must be complex if they are to achieve the goals that we have set for them.