This glaring lack of international cooperation can be explained in part by the globalization paradox, which describes the universal recognition of the need for some type of international government while fearing it at the same time.5 As such, the solution to a lack of international cooperation must appease those who fear the harmful potential of an international government.

III. Transgovernmental Networks

In this comment, I argue that the OTP can make itself an effective partner to nation states exercising universal jurisdiction by developing transgovernmental networks, which would build international cooperation while appeasing those who fear an international governing entity.

Transgovernmental networks consist of individual actors within governments of various nations who make policy by directly and informally coordinating with each other.6 In transgovernmental networks, subunits of different governments may interact with each other without being controlled by the policies of the cabinets or the executives of those governments, “often with minimal supervision by foreign ministries.”7 Cooperation in these informal networks is based on “loosely-structured, peer-to-peer ties developed through frequent interaction rather than formal negotiation.”8 Because they are not bogged down by procedural rules, they are more flexible and adaptable.9 Rather than being characterized by formal associates and cooperation, transgovernmental networks interact in a “looser, ad hoc fashion.”10 Additionally, instead of setting rules through typical processes of formal treaty negotiations, transgovernmental networks rely primarily on “soft-law” mechanisms to create standards.11

Turner posits that transgovernmental networks could offer an effective response to the globalization paradox in international law.12 Due to their more informal nature, transgovernmental networks can appease those who are wary of an international government body while being an effective solution to the lack of international cooperation.

Investigators, prosecutors, and judges who work with international crimes are already beginning to collaborate with their transnational counterparts in such ways.13 In investigate networks, investigators of several international criminal tribunals cooperate with each other to exchange information and strategies.14 Similarly, prosecution networks consist of transnational prosecutors who exchange ideas about the best way to approach common prosecutorial challenges and issues faced globally.15 Lastly, judicial networks allow national and international judges to engage in dialogue concerning legal norms, which encourages participants to consider and benefit from transnational views.16

Having the OTP develop transgovernmental networks for these international criminal law professionals would serve to reinforce and foster ongoing efforts of collaboration that will ultimately strengthen universal criminal jurisdiction. Transgovernmental networks for international criminal law would allow and encourage investigators, prosecutors, and judges to continue coordinating and cooperating with each other in more flexible and informal ways.17

IV. Roadblocks to Implementing Transgovernmental Networks

Indeed, there are several issues with implementing successful transgovernmental networks. One, transnational collaboration is difficult because views on important criminal law questions diverge among nation states.18 This is because criminal law involves judgments about responsibility and punishment that have no objective right answer and depend on the particular moral views and political cultures of the affected communities.19 Secondly, government officials in countries often lack the autonomy needed to forge direct relationships with their foreign counterparts.20 Still, with more nation states seeking to exercise universal jurisdiction, the potential utility for transgovernmental networks is higher than ever.

The OTP is uniquely situated to make itself an effective partner in the development of such transgovernmental networks and resolving these issues. As Reydams claims, “[t]he future of universal jurisdiction… may depend on the ICC prosecutor.”21 Specifically, the OTP can develop transgovernmental networks by helping establish international norms, fostering horizontal relations between individual actors, and developing and utilizing specialized networks.

V. Establishing International Norms and Standards

Establishing shared international norms and standards is important to foster the transnational collaboration necessary for successful transgovernmental networks.22 The OTP can consolidate nation states’ diverging views by helping establish norms and standards that are agreed upon by the international community.

Firstly, the OTP can help establish shared standards by planning and sponsoring conferences and training sessions for individual actors of participating nation states. Giving participants an opportunity to meet and exchange dialogue in a more intimate and collegial setting would help participants strengthen a sense of common identity, emphasize shared objectives, and foster the consolidation of diverging views.23 Through this open dialogue, transgovernmental participants can channel their common objectives into defining soft international standards. Participants can then bring these agreed-upon ideas back to their domestic jurisdiction to promote international values within their domestic bureaucracies, which will slowly begin shaping prosecutorial norms across nations..By subtly influencing domestic norms to adapt to international standards, participating actors can increase the strength and solidarity of established international norms.24

As an example, judges from the ICC, International Criminal Tribunal of Yugoslavia, and International Criminal Tribunal of Rwanda are actively involved in meetings and training sessions with their international counterparts.25 Participant judges carry lessons learned at such international meetings back to their domestic courts where they rely on each other’s persuasive reasoning.26 In this way, participants exchange ideas, establish international norms, and implement these international norms domestically.27 The growing willingness of judges to consider transnational norms is only enriched by the increase in face-to-face interaction.28 This can also have a cyclical effect where judges are more willing to engage with their transnational counterparts as international standards are increasingly normalized.

It is important to note that such norms and standards need not be so formal. A key advantage of a transnational network is its potential to be more informal and unbuttoned than other forms of transgovernmental interaction.29 A transnational network is meant to encourage candid dialogue among its participants that leads to the informal sharing of best practices, advice, and guidance.30 Even disagreement among participants is fruitful by encouraging diversity of opinion. Just by regularly exchanging informal dialogue, legal professionals across the globe can develop databases of agreed-upon best practices.31 Best practices are then borrowed by participants who bring these international norms back to their domestic institutions and seek to socialize them into the policies and practices of their domestic institutions.32 In this way, a transgovernmental network’s casual discussion over best practices can subtly turn such practices into informal benchmarks and standards.

However, there is also ample opportunity for transgovernmental networks to have more formalized benchmarks and standards. The ICC could gather its own database of best practices from various states, which it could then disseminate to participants in the form of an official guide. For example, ICC is considering the development of prosecutorial standards and manuals similar to the IAP’s Human Rights Manual, which would serve as a guide to national authorities undertaking international crimes prosecution.33

One may ask how internationally established norms and standards will be enforced. Proponents of transgovernmental networks insist that cooperation with these benchmarks and standards is mostly self-enforcing because common interests always prevail.34 Participants establish long-term relationships with each other through these networks, which also creates incentives to follow best practices to establish a good reputation within the network’s community.

The OTP could also assist with the execution of “soft-law sanctions” when participants defy established standards, such as when a participant implements a standard in a way that conflicts with the majority’s understanding of that standard.35 Such sanctions could include shaming, suspending technical assistance, or even excluding the contravening participant from the network.36 The OTP has the influence and resources to make these soft-law sanctions truly impactful.

More importantly, the existence of the ICC itself serves as a backstop that will encourage participants to adopt established international norms. Under complementarity, the ICC is only permitted to intervene in international criminal law matters when the courts of the national jurisdiction where the crimes occurred are unwilling or unable to genuinely investigate and prosecute these crimes.37 Domestic institutions seeking to be recognized as conducting “genuine” prosecutions will seek to adopt and internalize such international norms in their prosecution process in order to demonstrate genuineness in their efforts.38

Critics argue that international criminal justice is highly political sensitive, which prevents true transgovernmental cooperation.39 However, with the rise of globalization and the emergence of new transnational threats, the international legal system must be able to influence the domestic policies of nation states, and nation states are beginning to recognize this.40 With the rise of universal jurisdiction, courts are increasingly referring to each other’s opinions.41 This shows that nation states are willing to rely on each other’s reasoning and norms in a highly politically sensitive area.

Additionally, in its ideal form, transgovernmental networks will foster an open dialogue that promotes understandings of international criminal law that reflect the views of the most affected countries who are participants of such networks.42 This can also help build meaningful transgovernmental cooperation by framing the conversation around those most impacted by discussions. Although international criminal law will never cease to be a highly political and sensitive area, transgovernmental networks can encourage diversity of opinion and embolden participants’ willingness to civilly disagree while still acknowledging and learning from differing views.

VI. Connecting Individual Actors

Next, the OTP can nurture transgovernmental networks by connecting individual investigators, prosecutors, and judges with their international counterparts. These horizontal contacts allow international counterparts to collaborate with their equals to create and strengthen transgovernmental networks.

The OTP has already recognized the importance of establishing vertical networks, which consist of close contacts and collaboration between the ICC and national officials.43 Turner posits that once vertical networks are established with the assistance of the OTP, this will lay the ground for more regular horizontal contacts and relations among law officials transnationally.44

The OTP can directly assist in building horizontal contacts and relations by connecting individual actors with each other. The OTP has already expressed its willingness to provide this type of information and assistance to national authorities.45 There are endless contributions that the OTP is uniquely situated to do when it comes to connecting transgovernmental actors, from convening meetings of NGOs and states to brokering contacts between states and institutions.46

Building horizontal networks fits closely with the existing strategies of the OTP, who has stated that it will rely:

[O]n extensive networks of support with States [… and …] multilateral institutions. This approach enables [the OTP] to better represent….States Parties.47

Indeed, the ICC has already begun fostering such intergovernmental relations. For example, prosecutors from various international criminal tribunals meet with ICC prosecutors annually to “discuss the challenges and lessons learned in the investigation and prosecution of international crimes.”48 Additionally, the IAP has met with the ICC to begin working on a Memo of Understanding, which would outline possibilities for more regular exchanges among prosecution agencies around the world.49 With more involvement by the OTP, horizontal communication between intergovernmental professionals can flourish.

VII. Building and Utilizing Specialized Networks

Lastly, the OTP can provide the coordination that has been lacking thus far to develop specialized transnational networks that will create effective pathways of assistance to states in need.50

First, the OTP can help build specialized transgovernmental networks that are experts in certain fields. The OTP can “maintain a roster of willing experts, consultants, and NGOs able to assist states.”51 The OTP can use this roster and its connections with national governments to find actors who are willing to stimulate aid to states seeking assistance.52 The OTP can then connect these actors with other to help build such specialized transnational networks.

Subsequently, the OTP can connect these specialized transgovernmental networks to national governments seeking specific types of assistance. The OTP is uniquely positioned to recognize the failures and lacking areas of domestic judiciaries.53 For example, the OTP can identify a nation with weak prosecutorial ability and bring them to the attention of the right transnational networks that can help them build up their prosecutorial capacity.54 The OTP can also directly request specialized networks to assist troubled states.55 As Burke-White puts it, “the ICC is likely to excel at coordinating the efforts of different institutions.”56 Building and connecting specialized transgovernmental networks to states in need will increase the networks’ utility while also building their legitimacy.

VIII. Potential Risks

Indeed, there are several risks which must be considered in the implementation of transgovernmental networks.

One is the potential dominance of such networks by a few powerful countries.57 Networks may be subject to capture by economically dominant nation-states.58 It is already argued that:

[A] relative handful of courts in a handful of (mostly rich Western) countries have an outsized influence over the dialogue taking place… and over the contents of the norms emerging from that dialogue.59

Indeed, this concern is not exclusive to the implementation of transgovernmental networks and is an important consideration for all international matters.

Secondly, critics may argue that even if transgovernmental networks establish agreed-upon norms, there will be wildly inconsistent application of such standards by its participants.60 However, this critique may overvalue the need for uniform consistency in the way international law is interpreted and enforced.61 Turner claims that some degree of variation is “an important element of the local legitimacy of international law.”62 As such, although it is important to take this concern into consideration, we should not let this hinder us from seeking to advance transgovernmental relations.

Most importantly, there is an issue of exclusivity. If dialogue between national judicial actors from different countries does shape international law and legal norms, then non-participants are “the worse for not having contact with it.”63 Post-conflict nations who do not have access to transnational networks will not be able to “benefit from the norms produced by that dialogue, and their experience and views do not play a role in crafting the concerned international legal rules.”64 The issue of exclusivity is perhaps the most pressing, which means inclusivity must be actively sought when implementing transgovernmental networks.

IX. Conclusion

In conclusion, the OTP can make itself an effective partner to nation states exercising universal jurisdiction by helping develop transgovernmental networks. The OTP can overcome some of the key hinderances to the successful implementation of transgovernmental networks by helping establish international norms, fostering transnational communication between individual actors, and building and utilizing specialized networks. Although there are risks that must be carefully considered in the implementation of transgovernmental networks, such risks exist for all international matters and we must not let them hinder us from seeking to advance transgovernmental relations.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Douglass Cassel, Universal Criminal Jurisdiction, 31 Hum. Rts. 22, 22 (2004), available online. ↩

2. 2.

   Luc Reydams, Universal Jurisdiction in Context, 99 ASIL Proceedings 118, 119 (2005), paywall, doi. ↩

3. 3.

   Id. at 119. ↩

4. 4.

   See Cedric Ryngaert, The International Criminal Court and Universal Jurisdiction: A Fraught Relationship?, 12 New Crim. L. Rev. 498, 507 (2009), available online, doi.

   (“This is attributable to the role of international immunities, the fear of upsetting foreign nations, the primarily domestic focus of national prosecutors, and, of course, the projected lack of capacity and international cooperation to see an investigation through.”). ↩

5. 5.

   Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 Mich. L. Rev. 985, 987 (Mar. 2007), available online. ↩

6. 6.

   Id. at 986. ↩

7. 7.

   Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 Va. J. Int’l L. 2, 5, 19 (2002), paywall, earlier version, doi. ↩

8. 8.

   Id. at 5. ↩

9. 9.

   See id. at 23. ↩

10. 10.

    Elena Baylis, Reassessing the Role of International Criminal Law: Rebuilding National Courts Through Transnational Networks, 50 B.C. L. Rev. 1, 61 (2009), available online. ↩

11. 11.

    Turner, supra note 5, at 994

    (describing how soft-law mechanisms include “standards, guidelines, and memoranda of understanding.”). ↩

12. 12.

    Id. at 987. ↩

13. 13.

    Id. at 986. ↩

14. 14.

    Id. at 1007.

    (“For example, when the International Criminal Court began its first investigations in Uganda, Congo, and Sudan, it relied on effective practices identified by the Yugoslavia and Rwanda tribunals before it.”). ↩

15. 15.

    Id. at 1010–13.

    (The International Association of Prosecutors is one such informal prosecutorial network that promotes global cooperation among prosecutors in investigating transnational crimes). ↩

16. 16.

    Baylis, supra note 10, at 64; see also Paul Schiff Berman, From International Law to Law and Globalization, 43 Colum. J. Transnat’l L. 485, 503 (2005), available online. ↩

17. 17.

    Turner, supra note 5, at 987–88. ↩

18. 18.

    Id. at 988. ↩

19. 19.

    Id. at 995. ↩

20. 20.

    Id. at 989. ↩

21. 21.

    Reydams, supra note 2, at 119. ↩

22. 22.

    See Anne-Marie Slaughter & William W. Burke-White, The Future of International Law is Domestic (or, the European Way of Law), 47 Harv. Int’l L.J. 327, 339–40 (2006), available online

    (discussing how mechanisms like setting benchmarks and standards is important to build domestic-capacity because the success of policies at the international level depends on political choices at the national level). ↩

23. 23.

    Turner, supra note 5, at 1014. ↩

24. 24.

    See id. at 988

    (discussing how transgovernmental networks can subtly influence domestic norms by connecting individual investigators, prosecutors, and judges, who could advocate internally for prosecutions consistent with network standards). ↩

25. 25.

    Id. at 1015. ↩

26. 26.

    Id. at 1015–16.

    (“As Anne-Marie Slaughter has observed, we are witnessing a rise of a community of courts in which judges are increasingly referring to each other’s opinions not because these opinions are binding authority, but because of their persuasive reasoning.”). ↩

27. 27.

    See id. at 1016.

    (“So an important benefit of these less formal judicial networks is that they accommodate legitimate diversity of opinion, even as they exchange useful ideas and information on how to implement international norms domestically.”). ↩

28. 28.

    Berman, supra note 16, at 503. ↩

29. 29.

    Baylis, supra note 10, at 60. ↩

30. 30.

    Lisa J. Laplante, The Domestication of International Criminal Law: A Proposal for Expanding the International Criminal Court’s Sphere of Influence, 43 John Marshall L. Rev. 635, 674 (2010), available online. ↩

31. 31.

    Slaughter & Burke-White, supra note 22, at 334. ↩

32. 32.

    William W. Burke-White, The Domestic Influence of International Criminal Tribunals: The International Criminal Tribunal for the Former Yugoslavia and the Creation of the State Court of Bosnia & Herzegovina, 46 Colum. J. Transnat’l L. 279, 307 (2008), available online. ↩

33. 33.

    Turner, supra note 5, at 1014. ↩

34. 34.

    Raustiala, supra note 7, at 24. ↩

35. 35.

    Turner, supra note 5, at 1024. ↩

36. 36.

    Id. ↩

37. 37.

    Christopher D. Totten & Nicholas Tyler, Arguing for an Integrated Approach to Resolving the Crisis in Darfur: The Challenges of Complementarity, Enforcement, and Related Issues in the International Criminal Court, 98 J. Crim. L. & Criminology 1069, 1080–81 (2008), available online. ↩

38. 38.

    Burke-White, supra note 32, at 308. ↩

39. 39.

    See Turner, supra note 5, at 992

    (discussing how international criminal justice is more politically sensitive and therefore less likely to engender transgovernmental cooperation). ↩

40. 40.

    Slaughter & Burke-White, supra note 22, at 328. ↩

41. 41.

    Turner, supra note 5, at 1016. ↩

42. 42.

    Id. at 996. ↩

43. 43.

    Id. at 1003. ↩

44. 44.

    Id. at 1004. ↩

45. 45.

    Id. at 1003. ↩

46. 46.

    William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 96 (2008), available online. ↩

47. 47.

    Id. ↩

48. 48.

    Turner, supra note 5, at 1010. ↩

49. 49.

    Id. at 1013. ↩

50. 50.

    See Reydams, supra note 2, at 119

    (discussing how the OTP can provide the coordination that has been lacking and could give universal jurisdiction a quasi-conventional basis among states-parties). ↩

51. 51.

    Burke-White, supra note 46, at 96. ↩

52. 52.

    Id. ↩

53. 53.

    Id. ↩

54. 54.

    See Turner, supra note 5, at 1003–04

    (noting that where the ICC does not have the resources to provide assistance, “it plans to put the relevant governments in contact with other partners who can help them build up their prosecutorial capacity.”). ↩

55. 55.

    Burke-White, supra note 46, at 96. ↩

56. 56.

    Id. ↩

57. 57.

    Turner, supra note 5, at 1029. ↩

58. 58.

    Berman, supra note 16, at 503. ↩

59. 59.

    Melissa A. Waters, Normativity in the “New” Schools: Assessing the Legitimacy of International Legal Norms Created by Domestic Courts, 32 Yale J. Int’l L. 455, 464 (2007), available online. ↩

60. 60.

    Turner, supra note 5, at 1020. ↩

61. 61.

    Id. at 1021. ↩

62. 62.

    Id. ↩

63. 63.

    See Baylis, supra note 10, at 65

    (explaining the impact that being isolated from international foreign colleagues can have on Congolese courts). ↩

64. 64.

    Id. ↩