Though international criminal justice has flourished over the last two decades, scholars have neglected institutional design and procedure questions. International-criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, stable career paths, and civil-service expertise. It should also draw on the American experience of federalism to cultivate cooperation with national authorities and select fewer cases for international prosecution. Revised plea bargaining and sentencing rules could learn from American experience and pitfalls, husbanding scarce resources and minimizing haggling, yet still buying needed cooperation. Finally, in blending adversarial and inquisitorial systems, international criminal justice has jettisoned too many safeguards of either one. It should reform discovery, speedy-trial rules, witness preparation, cross-examination, and victims' rights in light of domestic experience. Just as international criminal law can benefit from domestic realism, domestic law could incorporate more international idealism and accountability, creating healthy political pressures to discipline and publicize enforcement decisions.
Stephanos Bibas & William W. Burke-White,
International Idealism Meets Domestic-Criminal-Procedure Realism,
59 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol59/iss4/1