Lest We Fail: The Importance of Enforcement in International Criminal Law

Abstract

The title of this work embodies a concern that if the International Criminal Tribunals at Nuremberg, Tokyo and the recent additions at The Hague and Arusha are used as a gauge for deterring future violence, the international community must admit failure. This statement, however, is somewhat shortsighted in that it analyzes only one mechanism for achieving peace. The Nuremberg and Tokyo precedent provided the fertile ground for adopting two modern ad hoc International Tribunals and, potentially, an international criminal court capable of providing international redress for crimes. These advancements in a unified world community were not possible shortly after the Second World War. Rather, the advancements that stem from Nuremberg and Tokyo are a direct result of their failures.

Ours is a world unquestionably divided by conflict. War and chaos linger in the Congo. Starvation and disease are prevalent in war-torn Iraq. Conflict remains in Rwanda! Violence continues in Sierra Leone, Indonesia," Afghanistan, Angola, East Timor, Cambodia, and numerous other countries. We must assess the impact of modem efforts to combat war lest we fail again.e With the tools the international community now possesses, there is an opportunity for redemption. Enforcement of international humanitarian law and human rights obligations, however, remains the cornerstone of any formula for success.

Accordingly, this Article addresses the importance of enforcement issues as they relate to international criminal law. Part I of this Article considers the history and development of the International Tribunals. Specifically, Part I first addresses the history and legacy of Leipzig and the renowned Nuremberg Tribunal and their respective contributions to the development of the two current ad hoc Tribunals in The Hague and Arusha. Part II analyzes the difficulty of enforcing international criminal law, particularly as it relates to arrests and trials conducted at the International Criminal Tribunal for the Former Yugoslavia ("ICTY" or "The Hague") and the ICTR. Parts III through V of this Article address the numerous issues related to punishment in international criminal law and contemplates whether such punishment, in fact, operates to further the protection of human rights. Finally, the Article concludes with recommendations that address the future role that international criminal tribunals should assume if such bodies are to be utilized successfully in combating human rights violations and atrocities of war.

At a time when the world community is coming increasingly closer together, there is a duty to future generations to leave a legacy of peace. The tools are readily available. Malleable blueprints exist from our unfortunate predecessors, yet the responsibility lies with this generation to improve upon these prior judicial offerings. We must begin forging a collective solution to combat international violence before it is too late. The starting place may be as simple as enforcing the laws that we, as an international community, have already agreed exist. This Article considers whether the use of international criminal tribunals is the best mechanism to achieve the result we are seeking. This analysis is necessary, lest we fail.

Keywords: international law, international tribunals, Nuremberg trials, ICTY, international criminal court, sentencing, detention, dictatorships

JEL Classification: K33, K14, N40