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Opinion: Collaborative Justice

Publication Date: 
March 17, 2009
The Harvard Crimson
Noah M. Silver

Professor Jenny S. Martinez' article Antislavery Courts published in the Yale Law Journal is cited in The Harvard Crimson in an opinion piece suggesting that the International Criminal Court's (ICC's) indictment of Sudanese president Omar al-Bashir was a mistake and that international tribunals used to deal with human rights violations would have been a preferable course of action:

Ocampo’s ICC indictment was a bad idea from the start. In a nation ravaged by government-sponsored war, torture, rape, and murder, ensuring that humanitarian NGOs remain active is crucially important for the lives of ordinary Darfuris. The now-defunct NGOs contributed 80 percent of the workers to the UN World Food Programme’s efforts in Darfur and maintained hygienic standards in packed refugee camps. However effective or ineffective these organizations may be, 2.75 million refugees depended on their aid, along with millions more.


What, then, is the alternative? How should the ICC have approached this extraordinarily delicate situation? To answer these questions, look back to 1819, when the British Empire prosecuted the human rights violators of the 19th-century: slave traders.

Staffed by both British and local judges, mixed commissions were anything but individualistic. Through a series of bilateral treaties with the French, Portuguese, Spanish, Dutch, and American empires, Britain convinced states to cede sovereignty to Britain in its effort to crush the slave trade. Not only did these international tribunals charge foreigners with the task of judging domestic citizens, but they also worked in tandem with the Royal Navy as it seized illegal slavers on the high seas.

Jenny S. Martinez, a professor at Stanford Law School, called these courts the first “international human rights tribunals” in a recent article. As such, they preceded a line of famous international courts, including the International Military Tribunal at Nuremburg (1945) and the International Criminal Tribunal for the Former Yugoslavia (1993). What makes the mixed-commissions system an apter analogy in terms of Darfur today, though, is the peacetime incentives behind its establishment.