International Law: Still Pretty Messy

November 28, 2008 |  Tagged | Comments Off on International Law: Still Pretty Messy

On October 30th, Professor Combs gave the 2008 Blackstone lecture. The topic of her lecture was “Factfinding in International Criminal Law: The Appearance, the Reality, and the Future”.

After a brief overview of the course modern international criminal law has taken from the Nuremburg trials to today, Professor Combs turned to the focus of her talk: the difficulties posed by attempting to apply the standards and methods of criminal law fact finding to an international law context.

The war crimes tribunals that followed the Second World War were viewed as landmark events in the history of modern international law. There were high hopes that the international response to these atrocities represented a first step towards holding all accountable under the law, even political leaders and nation-states. Subsequent efforts in the field of international law include the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). Efforts such as these suffer from the difficulties that plague all international projects: poor funding, unstable political support, ill-defined authority, and inadequate enforcement mechanisms. Nonetheless there is hope that the mere existence of such tribunals is a step in the right direction, and a sign that international law is slowly progressing and growing.

However the failings Professor Combs’ talk focused on challenged this notion of modern international law as a system that, while flawed, is moving in the right direction. Specifically, Professor Combs analyzed the fact that the modern international law system seems to be employing a much more flawed fact finding method than they are willing to acknowledge, with troubling implications for due process.

Drawing on examples from the ICTR in Rwanda in particular, it was shown how often the most basic standards of due process that are critical to our understanding of justice and the legitimacy of the law are not being met in practice. Defendants may find themselves facing charges backed up by contradictory testimony, by testimony that changes between first interviews and trial, and by cultural and language barriers that confuse the situation for foreign judges and attorneys. Often times witness testimony is the only evidence due to a complete lack of documents or records. Witnesses from native rural backgrounds even refer to time and spatial measurements in fundamentally different terms than those recognized by the law (for instance, not bothering with distinctions shorter than weeks or months). The result is serious flaws in the tribunal’s ability to determine “who did what to whom”.

Clashing with all of these concerns and flaws are the demands of the international community. Crimes such as genocide and ethnic cleansing cry out for verdicts and justice and, despite severe legal flaws and shortcomings, many of the accused are blatantly guilty of these terrible crimes.

What, than, is to be done? Professor Combs briefly covered options that have been put forward. Some take such short comings as signs that international law efforts are costly, unjust, and ineffective. Much better, the argument goes, to try and move past the issue via efforts like South Africa’s post-apartheid Truth and Reconciliation Commission.

However, more controversial options exist as well. Professor Combs pointed out that the unique nature of the crimes in question, along with the inherent difficulties in proving them, could be used as an argument for a lower standard of proof and fact-finding in such trials. While it is troubling to think that such basic foundations of justice like due process and rigorous fact finding could be set aside in the name of easier verdicts and convictions, it might be the price to pay for making sure these crimes do not go unpunished. After all, if contemporary legal systems are of such a nature to be incapable of bringing to justice those who commit genocide, ethnic cleansing, and war crimes, there is a compelling argument that the system must change.

Photo courtesy of Flickr user viva_la_reina.


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