The opportunity to create an international court that provides fair, equitable, and efficient justice is rare and important. It requires expertise in comparative and international law. Problems are serious, however. Failure to address the formidable problems could cause the Court to run a risk of failure that could be disastrous for international law, for the victims of the horrors that have occurred and that will occur, and for the world. Failure could come in at least two forms: (1) the Court could merely be a conduit for retribution after a pro-forma kangaroo court or (2) it will not have sufficient funding or expertise to prosecute fairly, justly, and efficiently, so that all or most of the perpetrators will escape justice, unless national or regional courts take action. International law may be disparaged as meaningless. The victims of the horrific violations of the laws of humanity will have to live with the knowledge that the perpetrators, who flaunted the laws of humanity in the most cruel ways, walk free. The perpetrators and their victims know that fact. The cause of justice and international law or the cause of an international criminal court or set of courts could be set back badly.
This point is not to suggest that we should not go forward with prosecuting those who commit atrocities. Rather, we should not do so to make us feel good, but to succeed. Failure could harm not only values that we all hold to be important, but also could weaken international law. The danger of failure is a mockery of international law giving impetus to those who suggest that it is not law at all! Now that the process has begun, we owe it to ourselves and to all humanity to make it succeed.
25 Denv. J. Int'l. L. & Pol'y 233 (1997).
Blakesley, Christopher L., "Jurisdiction, Definition of Crimes, and Triggering Mechanisms" (1997). Scholarly Works. Paper 329.