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The Persuasive Authority of Internationalized Criminal Tribunals

34 Pages Posted: 10 May 2017 Last revised: 11 May 2017

Elena A. Baylis

University of Pittsburgh - School of Law

Date Written: March 31, 2017

Abstract

After a period in which it seemed as though hybrid criminal tribunals were waning, proposals for such tribunals are proliferating again. The recent success of the Extraordinary African Chambers in trying Hisséne Habré highlights the resurgent trend toward ad hoc internationalized courts and chambers to try cases of genocide, war crimes, and crimes against humanity. The international community could make strategic choices in designing this new generation of tribunals to maximize their effectiveness. One way that international courts spread their influence is through their persuasive authority. Even if their decisions are not binding on the concerned national courts, by persuading those national courts to adopt their rulings and analysis, international courts can extend their influence through the national justice system. This article argues that future hybrid criminal courts and chambers should focus on influencing national courts in post-conflict states through their judgments, as a way of increasing their impact in those states. However, effectively operationalizing this function is a complex task, both conceptually and practically. To identify factors that tend to make courts more or less persuasive vis-à-vis their counterparts, this article draws on studies of international court influence and on a case study of national trials in mass tort cases. It then suggests design features and collaborative strategies that future internationalized tribunals could adopt.

Keywords: Transitional justice, post-conflict justice, international criminal tribunal, hybrid criminal court, international criminal court, internationalized criminal tribunal, internationalized criminal court, rule of law, international criminal law, networks, transjudicial dialogue, capacity building

JEL Classification: K14, K33, K41

Suggested Citation

Baylis, Elena A., The Persuasive Authority of Internationalized Criminal Tribunals (March 31, 2017). American University International Law Review, Vol. 32, p. 611, 2017; U. of Pittsburgh Legal Studies Research Paper No. 2017-04. Available at SSRN: https://ssrn.com/abstract=2944352

Elena Baylis (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

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