2008} WHAT IS THE POINT OF INTERNATIONAL CRIMINAL JUSTICE? ui late proceedings had to be anticipated—the ‘Tribunal sat for 466 days, lis- tened to 295 witnesses, saw about 5,000 exhibits, and generated a transcript of over forty-nine thousand pages.'# Decision making on the basis of such mountainous material alone would have presented challenges to several accepted procedural principles, challenges yet to be recognized and ex- plored by legal and interdisciplinary scholars.!? ‘But the cost and complexity of the undertaking ix not the only reason for doubting the wiscom of atlcmpting to use criminal proceedings to pro- vide a comprehensive portrayal of events surrounding massive human rights violations. The proclaimed ambition to do so gives rise lo expecta- tions by victims that all incidents of atrocity will be prosecuted. Where this impossible, the likely result in communities affected by violence is a sense of disappointment and a feeling of betrayal. Nor is this all. Under the loupe of legal analysis, nagging technical problems arise, of which the most frustrating is the applicability of contextual findings made in one case to the adjudication of subsequent ones. To deny the former any effect on the latter is not only costly, but it raises the possibility of gritty dissonances in findings. On the other hand, if judicial notice is taken of original findings, then individuals who are prosecuted later are prevented from effectively challenging earlier determinations. This is hard to accept for a number of reasons, but especially because international criminal cases are replete with vvalences, and new material for a different narrative may surface. Add to all those problems the fact that deeper background issues tend to dwarf the subject of individual culpability, and it becomes clear that it is best for judges to limit their inquiries into the larger context to the very minimum required by the definition of international crimes.2° To advocate this form of judicial restraint is not to deny that probing into matters that transcend the narrow concem with specific crimes is a desirable undertaking. If criminal trials were the only instrument for plac- ing international criminality into broader context, then the abandonment by 18, Stephen Castle & Vetoa Perle Limon, Dey of Conjecture Ends as Auopsy Reveals Heart Autck wat Cause of Miloseve's Deoth, TWEIwDer., Mer. 13, 2006, ot News 5, Transcript of Record at ‘Bitvt Proscar v. Milotevie, ICTY-1T-02 54 (CTY Mar, 14,2006). 19, Leaving side the process of deletion Ise, even ls duration may be proba. to the lat case for example, ook the ICTY Tul Chatber seven on (een Sly 3, 1999 to March 3, 2000) to deliberate Before delivering the jcgment, If thie delay, agonizing othe accused, occured in domestic eriminal proceedings, human rgpts acavss would be gay wp 70 mms 20. tis worthy of mote thatthe ambition of ICTY judges to wnte sory bas more recently en éampened by The vapily approaching time lint on the Tibuna's existence. Negoteted uly ples have Become popular, undericring th wap between facts ia the pla apreteut ad ft that Heong tompechersive haloncal conde Toran acknowledgment of thin gap, ac, for caample, Prosar V Nikolié, Cooe No, 1794.2, Santmeing Judgement 122 (ICTY Dec. 18, 2003) (stating hat “his Trina en fal ptr Of Reoneal fat Thal oe sla." Meinl ~ 8 Chi-Kent L, Rev. 341 2008aa (CHICAGO-KENT LAW REVIEW (vol 83.1 the judges of their aspiration to be historians might plausibly be criticized as foreshortening the horizons of those who have the advancement of hu- rman rights at heart. But potentially superior mechanisms for achieving that purpose are available. In some circurustances, for example, properly organ- ized historic commissions are much better equipped than a criminal court to compile a comprehensive record of events. All things considered, then, there would be no reason to shed tears if international criminal courts were to tame their ambition to play the role of historians. Another candidate for a reduced role in intemational criminal justice iy the objective of making trials into a yenve to satisfy the interests of vie tims and their families. We have previously attempted to show that the implementation of this idea tends to gencratc « conflict with considerations of fairness to the accused. But there arc other problems with this objective as well, especially if international criminal trials continue to be organized as a contest between two partisan cases, with judges performing only a supplemental fact-finding function2! Observe that in order to effectively satisfy the victims’ interest, they, ot their representatives, have to be as- signed tasks that transcend strictly testimonial roles: they must also be permitted to address questions to witnesses, comment on statements by iwesses, and even make legal arguments, But this enlarged role of vic- tims, even if properly controlled by the court, clashes with incentives needed to maintain the vitality of bipolar trials. It is difficult to see, for cxample, why the prosccution and the defense would take pains to prepare for effective direct and cross-examinations, if questioning of witnesses by victims could easily throw their trial strategy into disarray. Observe also how easily cross-examination—the hallmark of party-managed presenta- tion of evidence-— generates tensions with the concer for the interests of crime victims. When individuals who were subjected to gross human rights abuses are called to the stand, challenging questions addressed to them by the defense easily exaccrbate their traumatic experiences. It will be said that the court is there (0 protect vulnerable witnesses from inappropriate ‘querics. But judges are in many situations reluctant to interfere with vigor~ ous cross-examination, for fear of crossing the fine line beyond which the defense has reason to complain that it was prevented from putting the prosecution's witnesses to an adequate test. And cven if international ‘criminal trials were largely free of bipolar pressures, as they someday ‘might be in the International Criminal Court, downplaying the aspiration to 21, The ICC wal segulation provides forthe pasty that judges sbandon the “Iwo eases” sirectire and organize the profction of evidence indifferent ways. See Rome Sintule ofthe Interna ‘ional Criminal Cou, ar G4(8), Joly 17, 198, 2187 ULN-T.S. 90 [hereinafter Rome Status) Heinle = 3 hp Kent ew 2 20082008) (WHAT 18 THE POINT OF INTERNATIONAL. CRIMINAL JUSTICE? ms satisfy victims’ interest in criminal prosecution would still be worth con- sidering. The main reason is that effective measures to provide victims with satisfaction require that elements of restorative justice be injected into criminal proceedings, and, as is well known, retributive and restorative forms of justice do not mix very well. ‘Again, if there were no other ways to respond to the plight of victims, all of these difficulties in organizing criminal proceedings might have to be tolerated: it would be heartless, indeed, to shortchange individuals ag- grieved by the most cgregious misdeeds in the catalog of crimes. But as with the demand for an historical record, other instruments exist to serve victims’ interests. Sweeping victim compensation schemes, enforced dis- gorgement of profits derived from crime, civil litigation, and various other forms of restorative justice are available as alternatives. Because their im- plementation docs not depend on meeting the heavy burden of proof re- quired for conviction of crime, they are—in this sense—more easily accessible to victims. Nor is punishment by international criminal courts the only measure available to provide satisfaction to victims whose vindic- tive feelings and retributive demands cannot be appeased by instruments of restorative justice. Where circumstances permit, national criminal prosecu- tions can be instituted, and individuals implicated in human rights viola- tions can be disqualified from holding important offices, purged from civit service, or subjected to some other de facto punitive sanction 22 Thus, if international criminal trials were to give voice only to those victims, or their families, whose testimony is indispensable for proving the charges, this would not indicate the judges” lack of compassion. It would be unfair to accuse them of having “tumed to stone within.”23 B. The Primacy of the Didactic Objective aving, argued that the aspirations of international criminal courts should be more modest, the next subject we want to address is whether a greater measure of order can be introduced among the unruly judicial ab- jectives. As already noted, no metric is available to establish a rigid set of collective entities, soch an flee corps a were ‘otue, these peraies woul! be impose ow tic ability jwuuuds win the officers of he wnt, with the vi lo multe the cllective to ax ant manitor compliance wih the lw, and post YO rep ‘those individuals eho ween actualy involved in erme. Proceads ffom penalies would be earmarked 4 ‘tim and thet files See Mork Ove, The Bamaiy of oval Aligning Incentives Against Mast ‘irocty, 103 COLUM. L. REV. 1731, 1842-46 2003). If a Micules inthe practical implementation of {his propor oll be resolved it need not end up asa sil-bore child ofthe intellect. 23,” DANTE AUCHIEM, INFERNO, cam 33:49 (Charles Eliot Nodon tans, Project Ciuteaberg 1999) (0891-92) bp gutenbergorletex 1995. Meianline 83 Chi Kew E.Rey. 343 2008