Sharpening the Cutting Edge of International Human Rights Law: Unresolved Issues of War Crimes Tribunals

International criminal tribunals have emerged as the most tangible and well-known mechanism for seeking justice in the wake of atrocious human rights violations. As the enterprise has developed, the need to ask fundamental questions is obvious, compelling, and essential. In March, 2006, the Boston College International and Comparative Law Review, together with The Center for Human Rights and International Justice at Boston College and the Owen M. Kupferschmid Holocaust/Human Rights Project convened a diverse and impressive group of speakers from academia, the judiciary, and legal practice to evaluate: the development of “common law” of the tribunals, the function and limits of tribunals, and the state of legal concepts not clearly governed by international law. Much of the extended conversation of that day is contained in this published version, comprising seven articles. From the participants’ insights one can discern not only important new ideas and syntheses, but an outline for future research that is grounded in a deep respect for the broad human rights enterprise of which the tribunals are the “cutting edge.” For better or worse, international criminal tribunals have emerged as the most tangible and well-known mechanism for seeking justice in the wake of atrocious human rights violations. If they accomplish their ostensible goals, international tribunals may render justice to the accused, sustain the rule of law, give voice to victims, promote reconciliation, create a record, empower communities, resolve factual disputes, and ensure that grave war crimes do not go unpunished. They offer tantalizing promises of legitimacy, regularity, and predictability as they work to achieve goals common to all systems of criminal law—just pun* Clinical Professor of Law and Director, International Human Rights Program, Boston College Law School. This article is an overview of the articles published in this issue that were based on speeches and panel discussions presented at “Sharpening the Cutting Edge of International Human Rights Law: Unresolved Issues of War Crimes Tribunals,” a symposium on war crimes tribunals at the Boston College Law School on March 24, 2006. 2 Boston College International & Comparative Law Review [Vol. 30:1 ishment, deterrence, incapacitation of the dangerous, and rehabilitation.1 But criminal law is a blunt instrument at best, even in domestic legal systems. Its purposes are difficult to synthesize and therefore its achievements are elusive to evaluate.2 No single normative theory works to justify all criminal doctrines, nor should it.3 In operation, criminal law often masks complicated interpretive constructs.4 Those who practice criminal law, as I did for many years, repeatedly see the wisdom of the maxim that when one’s only tool is a hammer, all problems tend to look like nails.5 Following the death of Slobodan Milosevic in custody and mid-trial at the Hague and the grotesque spectacles of Saddam Hussein first mocking the criminal justice system he faced and then being taunted by his executioners as he faced the gallows, the need to ask hard, fundamental questions about the current state of war crimes tribunals is obvious. Moreover, as the enterprise has developed through the prodigious efforts of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC), and many other tribunals, a welter of more specific legal questions have arisen. In March, 2006, the Boston College International and Comparative Law Review, together with The Center for Human Rights and International Justice at Boston College and the Owen M. Kupferschmid Holocaust/Human Rights Project, convened a diverse and impressive group of speakers from academia, the judiciary, and legal practice to evaluate the following related issues: 1. The development of “common law” of the tribunals: How might various legal standards at different tribunals be reconciled and evaluated? How much uniformity should be sought? What are 1 Paul H. Robinson, Hybrid Principles for the Distribution of Criminal Sanctions, 82 Nw. U. L. Rev. 19, 19 (1988). 2 See Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 401 (1958) (“Examination of the purposes commonly suggested for the criminal law will show that each of them is complex and that none may be thought of as wholly excluding the others . . . . The problem, accordingly, is one of the priority and relationship of purposes as well as of their legitimacy . . . .”). 3 Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 Colum. L. Rev. 269, 350 (1996). 4 See Mark Kelman, Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1981). 5 So far as I am aware, the exact origins of this formulation are unclear. It is frequently attributed—without precise citation—to Mark Twain and, more recently, to Abraham Maslow. 2007] Unresolved Issues of War Crimes Tribunals 3 the implications of such “common law” development for international human rights law more generally? 2. The function and limits of the tribunals: What are the optimal purposes of trials when massive human rights abuses have destroyed a community or indeed an entire country? How have the tribunals measured up in that regard? How does one reconcile forensic legal practice with the needs of victims? What multi-disciplinary models can be developed to move international criminal practice towards a more holistic approach? 3. The state of legal concepts not clearly governed by international law: What are the professional ethical standards that govern the tribunals? What is the law of competency, the scope of attorneyclient privilege, self-representation, the breadth of the protection against self-incrimination, et cetera? The results of this Symposium were a series of well-reasoned, deeply-engaged, and lively discussions. Fortunately, much of the extended conversation of that day is contained in this published version. From the participants’ insights one can discern not only important new ideas and syntheses, but an outline for future research that is grounded in a deep respect for the broad human rights enterprise of which the tribunals are the “cutting edge” (an intentional double entendre implying both a surgical and a destructive capacity). Justice Robert Jackson’s opening statement to the Nuremberg Tribunal offers a good starting point for consideration of these topics. Jackson said, “The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”6 He then focused attention on the fact that, “four great nations, flushed with victory and stung with injury stay[ed] the hand of vengeance and voluntarily submit[ted] their captive enemies to the judgment of the law.”7 This triumph of law over cruder mechanisms was, he said, “one of the most significant tributes that Power has ever paid to Reason.”8 These are surely among the most famous, aspirational, and ringing words ever spoken in a court room or indeed anywhere. They retain 6 Robert H. Jackson, Prosecutor’s Address of Nov. 21, 1945, 2 Trial of the Major War Criminals Before the International Military Tribunal 98–99 (1947) [hereinafter Jackson, Prosecutor’s Address].