Toward a Situational Model for Regulating International Crimes

Abstract The international criminal regime, as currently conceived, relies almost exclusively on the power of backward-looking criminal sanctions to deter future international crimes. This model reflects the dominant mid-century approach to crime control, which was essentially reactive. Since then, domestic criminal scholars and practitioners have developed and implemented new theories of crime control-theories notable for their promise of crime prevention through ex ante attention to community and environmental factors. Community policing, crime prevention through environmental design, and related "situational" approaches to crime control have had a significant impact on the administration of domestic criminal law. This Article evaluates the implications of these approaches for the international criminal regime. Despite the significant distinctions between international and domestic crimes, there are important similarities-most notably, the finding that environmental factors play a key role in the commission of both sorts of crimes. This finding creates space for the situational turn at the international level. Applying this model to the international regime has implications for how we understand and design tactics aimed at preventing international crimes ex ante. It also has real and theoretical implications for ex post justice. Table of Contents I. Introduction 180 II The Situational Model of Crime Control 184 A. Design Elements 185 1. Environmental design 186 2. Expansive regulatory inquiry 189 3. Expanded conception of police 191 4. Proactive rather than reactive regulation 193 B. Empirical Data 194 IV. The Exceptional International Criminal Regime 197 A. Exceptional Crimes 198 B. Evaluating the Distinctions 199 C. Practical Concerns 205 IV. The Situational Model in International Criminal Law 208 A. Environmental Design 208 1. Visible monitoring 209 2. Material features of the environment 213 B. Expansive Regulatory Inquiry 215 C. Expanded Conception of Police 218 D. Proactive Rather than Reactive Regulation 223 V. Implications for International Courts 228 A. Negative Interaction Effects 228 B. Implications for the Prosecution of International Crimes 230 C. Unbundling Prevention from Punishment 234 VI. Conclusion ....237 I. INTRODUCTION One of the central goals of the international criminal regime is the prevention of international crimes: genocide, war crimes, and crimes against humanity.1 To date, practitioners and scholars of international criminal law concerned with this goal have largely focused on the preventive capacity of international criminal tribunals where the worst actors are accused of the gravest crimes.2 They have paid comparatively little attention to other institutions or other mechanisms for preventing international crimes. This omission is striking on its own. Scholars have long bemoaned the difficulty of achieving the many goals of international criminal law with the single, relatively blunt instrument of the individual criminal trial.3 But this omission is especially striking today given the significant changes seen in the last forty years to both the theory and practice of domestic crime control. In that time, criminal law scholars have developed a number of theories to understand how social and environmental factors contribute to the likelihood of crime,4 and domestic criminal regimes around the world now explicitly seek to influence these factors. …