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50 Harv. Int'l L.J. 323 (2009)
In International Criminal Prosecutions, Justice Delayed Can Be Justice Delivered

handle is hein.journals/hilj50 and id is 327 raw text is: VOLUME 50, NUMBER 2, SUMMER 2009

In International Criminal Prosecutions, Justice
Delayed Can Be Justice Delivered
Alex Whiting*
Something of a consensus has emerged within the international community and among commentators
that war crimes tribunals have been too slow to investigate, charge, and prosecute war crimes. While
acknowledging the importance of expediency in international criminal prosecution, particularly for victims,
this Article challenges the feasibility, and even the desirability, of quick investigations and prosecutions of
war crimes. Relying on examples from the International Criminal Tribunal for the Former Yugoslavia
and other tribunals, as well as literature about the processes by which societies and individuals descend
into mass atrocity, this Article contends that time is often essential to the attainment of justice in this area.
War crimes cases pose particular challenges in both the investigation and prosecution phases that distin-
guish them from even the most complex domestic cases. In addition, war crimes cases are born of significant
societal disruption that can impede, on both the societal and the individual level, the emergence of evidence
in the short-term. Often, a true picture of crimes will be available only after time has passed and distance
has increased from the conflict. If prosecutors rush or excessively narrow the scope of cases, they risk
undermining the goals of the prosecutions. In developing expectations for future war crimes tribunals,
therefore, the international community must balance the desire for expediency against stubborn but neces-
sary processes that may cause delay.
After nearly half a century of inactivity following the Nuremberg and
Tokyo war crimes trials, international and semi-international (or hybrid) war
crimes tribunals have proliferated around the world in the past fifteen years.
These various courts have engendered numerous debates about the goals,
structures, procedures, successes, and failures of international war crimes
prosecutions. Although a permanent International Criminal Court (ICC)
has now been established, there is still little agreement on many of these
issues. On at least one point, however, something of a consensus has
emerged. The conventional wisdom among policymakers, practitioners, and
commentators (both academic and popular) is that war crimes prosecutions,
particularly those at the International Criminal Tribunal for the Former Yu-
goslavia (ICTY) and its counterpart for Rwanda (ICTR), have fre-
* Assistant Clinical Professor of Law, Harvard Law School; Trial Attorney and Senior Trial Attorney
at the International Criminal Tribunal for the Former Yugoslavia (2002-2007); Trial Attorney and As-
sistant U.S. Attorney at the U.S. Department of Justice (1991-2002). I wish to thank Colin Black,
Rebecca Richman Cohen, Tor Krever, Scott Leslie, Diane Orentlicher, David Sklansky, Nelson Thayer,
Joy Wang, Taylor Hathaway-Zepeda, the participants of the Eleven Lessons of International Justice
conference at the University of Zaragoza, Spain, and the students in the War Crimes Prosecution work-
shop, Harvard Law School, Spring 2008 for their helpful comments, and Albert Chang and Julia
Gegenheimer for their invaluable research assistance and comments on drafts.

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