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Any inquiry into the merits of an international criminal court must start with resolving three basic issues:

1. Can the tribunal improve international cooperation in law enforcement, add to the capabilities of the various nations in matters of international criminal law, or contribute in any incremental way to the solution of international and transnational criminal law problems by improving the current practice and enhancing the effectiveness of all concerned?

2. Will the recommended system have a better or equal chance of operating as effectively as the best existing systems of national criminal justice?

3. Will the recommended system improve efficiency and cooperation without causing additional problems of a magnitude as great or greater than the solutions it presents?

The first question in the establishment of an international criminal court, therefore, relates to expectations. If the tribunal is burdened with the unrealistic expectation that it will resolve all problems of international and transnational criminality, it is set for failure. If, on the other hand, it is perceived as an instrument that incrementally can add to and contribute to the solution of some of these problems, it will do so. The proposed tribunal will not deflect domestic concentration on law enforcement, but will provide a significant incremental benefit to and a facilitator for each domestic criminal justice system.

Second, some argue that the recommended system must function optimally, without flaws, or it should be rejected. Again, the recommendation is weighted down with the burden of being perfect or being rejected. The reality is, and the test for the viability of the system should be, whether it will work like any other system of justice. It will have its share of flaws and inadequacies, but overall, the system will function well. The questions appear rhetorical and they are, except that some critics of the recommended tribunal argue that it should not be studied, let alone created, unless these unrealistic expectations are met. The answer is obvious and dictated by experiential logic. No system of national or international justice, no matter how carefully planned or how well administered, is perfect. All systems are human institutions and function more or less well. The task is to see if this recommended institution can work as well as domestic systems and whether it can provide benefit to domestic systems and to the international community. Thus, the initial premise must be that an international criminal court will not be a panacea for all ills in relation to international and transnational crime facing the world community. Rather, the institution will be worthwhile if it merely can provide an additional strategy to deal effectively with these problems in a manner that is likely to produce incremental positive results.

The third issue is whether, even with its flaws, the tribunal will enhance each participating nation's criminal justice system and promote solutions to seemingly intractible problems of cooperation in matters of international criminal law. Will it do this without creating problems that are just as serious or more serious than the problems it resolves? It undoubtedly will resolve many problems in the international criminal law arena. It will not resolve them all. The system even may create some problems as well. The test will be whether the problems can be obviated in the organic statute and the development of the court.

Publication Citation

25 Vand. J. Transnat'l L. 151 (1992).