International Courts in Atypical Political Environments: The Interplay of Prosecutorial\nStrategy, Evidence, and Court Authority in International Criminal Law

I INTRODUCTION The reemergence of a professional field of international criminal law at the end of the twentieth and beginning of the twenty-first century--including prominent institutions such as the International Criminal Tribunal for Rwanda, the International Criminal Tribunal for the former Yugoslavia (ICTY), and the permanent International Criminal Court (ICC)--has reshaped how atrocities are handled at the international level. For the first time since International Military Tribunals (IMTs) at Nuremberg and in the Far East, a legal and logic of individual criminal accountability reemerged to respond to massive human rights violations. (1) This framework revived the legacy of Nuremberg and Tokyo, which established modern legal claims of international judicial and court authority. With legal authority delegated to ad hoc international tribunals by the UN Security Council, and with the ICC acquiring legal or de jure authority through treaty obligations or through the UN Security Council, over the past three decades we have witnessed the expansion of an institutional and professional field of normative legalism that, outside of the European Court of Human Rights, enjoyed no authority--legal or otherwise--during the Cold War. (2) Given the coercive nature of international criminal courts, and the challenges they present to state sovereignty and sovereign immunity, we identify the geopolitical context as crucial to delineating the scope of authority that these courts enjoy. (3) Indeed, the importance of geopolitical context is evident in the very lead-up to the creation of this field of international criminal law, because even achieving de jure authority has been contentious. (4) And even such courts' de facto authority that resulted in sovereign legal accountability for such crimes was developed in national settings for many years during the Cold War before gaining significant political support on the international stage. (5) The creation of the International Criminal Tribunals for Rwanda and the former Yugoslavia, along with other specialized ad hoc courts and tribunals from the 1990s forward, built on these approaches to emphasize human rights enforcement through personal responsibility and punishment. (6) By the time the Rome Statute, which created the ICC, was adopted in 1998, the authority of international criminal law had expanded and deepened through the landmark practices of these earlier ad hoc tribunals and the political momentum that supported their work. When one examines the narrow legal authority of these post-World War II and post-Cold War Tribunals--the growth in their legal mandate, the number of courts, the doctrinal expansion of the approach to prosecuting war crimes from the 1990s forward, and the creation of a permanent ICC in their wake--it is tempting to develop a teleological account of the expansion in de jure (and de facto) authority in the field of international criminal law. (7) Yet a teleological account tends to downplay both fine-grained questions that an analysis of de facto authority requires, and also the capacity to gauge the authority of specific courts rather than of the wider field. This article instead analyzes two broad elements: First, the contextual factors that shape the authority of international courts, in particular the constituencies they can mobilize, the geopolitical context in which they operate, and their relations with national fields of power; and second, connected to these, the international legal practices that these courts and their actors develop. (8) It is this dual approach to understanding authority--the articulation between practices and contextual factors, with court practices continuously adapting to external contexts that we operationalize through the study of international criminal courts. (9) International criminal courts uniquely draw together these two indicators of authority, with external contextual factors deeply connected to the internal legal practices that these courts go on to develop. …

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