Combs: Legitimizing International Criminal Justice: The Importance of Process Control

Nancy Combs (College of William & Mary - Law) has posted Legitimizing International Criminal Justice: The Importance of Process Control (Michigan Journal of International Law, forthcoming). Here's the abstract:

International criminal tribunals that prosecute genocide, crimes against humanity, and war crimes have recently undergone two important evolutions: a procedural evolution and an evolution in the regulation of defense counsel. These two evolutions appear largely unrelated, and they appear to have stemmed from two very different motivations: the procedural evolution from a desire to reduce the length and cost of international criminal proceedings, while the defense regulation evolution from a desire to improve the quality of defense representation. This article argues that, although those motivations do explain the respective evolutions at a superficial level, a far more profound and far-reaching evolution stands at the heart of both of them. This article shows that the early international tribunals had little choice but to adopt party-driven adversarial procedures and to permit defendants maximum discretion in selecting the counsel to represent them. More importantly, by invoking decades of social psychology research involving process control, this article shows the way in which the tribunals’ early procedures and policies served to strengthen and legitimate the then-vulnerable institutions that employed them. Once international criminal justice had gained a measure of legitimacy, the tribunals were able to institute valuable procedural and regulatory reforms. Thus, this article shows that the procedural and defense counsel evolutions reflect an underlying and far more fundamental evolution in international criminal justice as a whole: the evolution from a novel, distrusted criminal justice system to a respected, credible accountability mechanism.