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.
The Persuasive Authority of Internationalized Criminal Tribunals,
American University International Law Review
Available at: https://scholarship.law.pitt.edu/fac_articles/18