International Criminal Law and the Role of Domestic Courts

Abstract

The proper role of domestic courts in cases involving international crimes has been hotly debated, some arguing in favor of domestic prosecution, 1 and others in favor of international prosecution.2 Scholars in the latter group believe that domestic courts or other procedures cannot be trusted with the effective prosecution of grave international crimes.Unlike the Statutes of the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTYand ICTR, respectively), 3 that of the future international criminal court (ICC) seeks to bridge this gap by giving preference to domestic procedures if they have been conducted in a bona fide way. 4 The concept of complementarity is fundamental to the design of the ICC Statute: if in a case otherwise eligible for consideration by the ICC a bona fide examination of the alleged crime was undertaken and disposed of by a state (whether or not it is a party to the ICC Statute), the matter will not be admissible before the ICC. 5 Difficult questions abound, not the least of which is how the ICC should evaluate the bona fides of those domestic procedures.However, I would like to examine a broader matter here: the substantial increase in domestic prosecutions of international crimes stimulated by the work of the ICTY and the ICTR, as well as the impending establishment of the ICC and its rule of complementarity.After the termination of the Tokyo and Nuremberg Tribunals, 6 domestic courts rarely attempted to prosecute Nazi fugitives from justice for international crimes they had committed during World War II.Still more rarely did domestic courts prosecute other persons who had committed international crimes subsequent to World War II.Until the establishment of the ICTY and the ICTR, opinion generally characterized prosecutions of international crimes merely as victors' vengeance and a historical anomaly.Yet suddenly an enormous number of prosecutions for such crimes are taking place in the domestic courts of 1 See, e.g., Jose E. Alvarez, Crimes of States/Crimes of Hate: Lessons from Rwanda, 24 YALE J. INT'LL.

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