Stanford Report, March 30, 2005

Foreign judges gather on campus to weigh the impact of international courts

International courts and tribunals are playing an increasingly important role in the evolution of international law and the emergence of an international legal system, said judges at a global jurisprudence conference held on campus March 18. Despite their growing role, however, international courts still face significant challenges in carrying out their missions.

International criminal tribunals, for instance, walk a delicate line between rendering justice and fostering reconciliation in war crimes cases, which makes sentencing far different than it is for crimes in national courts, according to Zambian Judge Florence Ndepele Mwachande Mumba of the Appeals Chamber of the International Criminal Tribunals for the former Yugoslavia and for Rwanda.

"How many years can you give to make up for those who lost their families, their property … for some of the worst rape cases, where the women [because of the stigma] say they should have been killed rather than left to live?" Mumba said. The unprecedented conference brought together 11 judges from eight international tribunals to discuss their courts' evolving roles in shaping the rule of law in an interconnected world.

On the one hand, Mumba said, judges must send a message that rape, genocide and attempts to "obliterate" an entire people's existence cannot be condoned by the international community. Yet judges cannot succumb to retribution or the "wheels of vengeance," she said.

South African Judge Navanethem Pillay of the International Criminal Court added: "International courts do not have any enforcement mechanisms. … In domestic jurisdictions, you have the police, the media. … In civil society, it would be unthinkable if the police did not prosecute serious crimes." But international criminal tribunals must depend on states to volunteer to provide the cooperation they depend on to be able to function, she said.

Throughout the day, judges agreed that even as international courts face challenges, they are crucial to preventing human-rights abuses and shaping modern justice.

The conference was organized by Stanford Law School faculty, including Allen Weiner, the Warren Christopher Professor of the Practice of International Law and Diplomacy and a former State Department lawyer and diplomat. "The proliferation of these courts is something everyone has noticed, but the odd thing about them is that there are no formal relationships or a hierarchy among them," Weiner said.

As the number of courts has increased, so have questions about their efficacy. Their roles are varied, from enforcing European Union regulatory law to trying war criminals. Weiner sees a compelling need for judges to begin a conversation about their work "both with each other and national courts," if the world is to move toward a true international judicial system.

U.S. reconsidering the authority of international courts

The case of Jose Medellin, a Mexican national on death row in the United States for the rape and murder of two Houston teenagers, exemplifies the complexity of these tribunals' decisions.

In a case brought by Mexico before the International Court of Justice—the U.N. high court for resolving country-to-country conflict—the court said in 2004 that Medellin and 50 other Mexicans on death row were entitled to hearings to consider the impact of the fact that, at the time of their arrests, they were not told of their right to contact Mexican consular officials, required by the Vienna Convention on Consular Relations.

The Bush administration agreed on Feb. 28 to follow the international court's decision by ordering state courts to grant the 51 Mexicans hearings to assess the impact of the lack of consular notification. Yet about a week later, it made an unexpected announcement: It was withdrawing from the Vienna Convention's optional protocol that gives the International Court of Justice jurisdiction over disputes related to the treaty, including complaints related to those who have been illegally denied access to consul officials when jailed abroad.

At the Stanford conference, Judge Rosalyn Higgins, a British judge on the International Court of Justice, stressed that ultimately all the court did was ask the United States to make sure prejudice had not occurred as a result of the breach of the treaty. "We did not in any stage say that the courts should set judgments aside. … In the scheme of things, this modest suggestion has occasioned a great deal of difficulty."

Meanwhile, the U.S. Supreme Court heard oral arguments in the Medellin case on March 28.

While some experts say the case may become moot because of President Bush's order to state courts to grant new hearings, the conference's judges and experts around the world are watching the situation closely because of the unique tension the case presents between different branches of government: Implementing treaties is a matter of interpreting the law, which falls into the judicial arena. Yet the operation of treaties affects foreign policy, where the executive branch has special responsibilities. The Medellin case consequently has significant potential to affect how the United States complies with future decisions of international tribunals.

Moving beyond Nuremberg

The history of international courts is deeply rooted in the 1945-46 Nuremberg Trial of Nazi war criminals. Yet Judge Geoffrey Robertson of the United Kingdom said that today, "Prosecutors have to learn not to follow Nuremberg, not to charge for every crime. We can't have trials lasting five, eight, 10 years." Robertson, who serves on the Appeals Chamber, Special Court for Sierra Leone, said prosecutors need to pick the crime for which they have the most evidence.

"We can't afford to pay a million dollars for each defendant," Robertson said, adding, "We can't afford to allow defendants to defend themselves" using the trial as a soapbox to inspire other human-rights abuses from followers.

Helen M. Stacy, a senior research scholar at the Center on Democracy, Development and the Rule of Law at the Stanford Institute for International Studies, said the conference highlighted the complex issue for international criminal tribunals of prison conditions. The tribunals for Rwanda and the former Yugoslavia sit in Tanzania and The Hague, respectively. Hence, defendants are not only held in countries far removed from where the violence took place, but they are held in jails with conditions far better than jails at home—as a result of U.N. standards—and often with conditions better than civilians have in the war-torn countries. The result is a "bizarre effect," Stacy noted, and the conference's judges agreed the issue causes anger and frustration for victims.

Judge Juliane Kokott of Germany, an advocate general at the Court of Justice of the European Communities, said that the court offers a successful model of jurisdiction over states. The court, which sits in Luxembourg, deals with matters regulated by the European Union such as social, environmental and patent law. Over the past decades, European jurisprudence has developed so that decisions of the European Court are given automatic and direct effect by the domestic courts of European countries.

The court's success is notable given the trend of increased globalization, through which sovereignty will continue to evolve and relations between domestic and international courts and institutions will grow more interdependent. The close cooperation of the European Court of Justice with states and its ability to curtail their power are examples of an "international case law approach that may one day reign over statutes and treaties," Kokott said.

At the conference's end, Judge Theodor Meron of the United States, president of the International Criminal Tribunal for the former Yugoslavia, said the international courts' impact on advancing international law is unquestionable. Look at "the unprecedented return of refugees to Bosnia, unlike Palestine," he said. "Experts tell me this could not have happened without the ICTY."

He added, "It is clear there is a great deal of hard work ahead so that international criminal law becomes a tool of deterrence, not only a tool of punishment. It is sometimes said we must forgo justice to preserve peace. I believe … each is necessary to the preservation of the other."

The conference was sponsored by Stanford Law School and the Stanford Rule of Law Program; the Center on Democracy, Development and the Rule of Law; the Stanford Law Review; and Santa Clara University School of Law and Institute of International and Comparative Law.

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