Should We Give the Investigating Judge a Chance in International Criminal Proceedings?

Abstract

The model of international criminal proceedings has, since the inception of the post WW II Military Tribunals of Nuremberg and Tokyo, as good as consistently been based on the adversarial approach towards criminal justice. This means that the collection and presentation of evidence is put in the hands of two opposing parties, the prosecution and the defence, and the judge has no or very limited powers in terms of fact-finding.

With the international criminal justice system coming of age, we witness the introduction of some elements in the procedure which are unfamiliar to the adversarial model, such as victims participation and the creation of a Pre-Trial Judge or Pre-Trial Chamber. However, in practically all international criminal tribunals, these variations are not of the degree to substantially change the organisation of fact-finding; this remains essentially a matter for the parties.

There is one exception to the above orientation on the adversarial approach to criminal proceedings and that is the organisation of fact-finding at the Extraordinary Chambers in the Courts of Cambodia (‘ECCC’). Contrary to all other international criminal tribunals, the ECCC has a procedural system in which fact-finding is put in the hands of Co-Investigating Judges. This procedural set-up is based on Cambodian national law of criminal procedure, which in turn is — as a former colony — borrowing largely from French law. This strong orientation on national law in the procedural design of the ECCC could make it less suitable as possible guidance for other — both present and future — mechanisms of international criminal justice. Yet, with all investigations having been finished by the ECCC’s Investigating Judges, it is nevertheless worth addressing the question whether we should give the Investigating Judge a chance in international criminal proceedings.

The present paper intends to provide a — tentative — answer to that question. In order to do that it is first necessary to provide an overview of the different modalities and forms of Pre-Trial Judges in the pre-trial phase of certain national criminal justice systems (Section 2). Next, I will provide an overview of the role and position of the judiciary in the pre-trial phase at the ICTY, ICC and — of course — the ECCC (Section 3). The evaluative part of this paper will start with addressing two current problems in international criminal proceedings for which a stronger judicial role prior to trial could be a remedy (Section 4). A number of disadvantages in the creation and functioning of Investigating Judges in international criminal proceedings will also need to be discussed (Section 5). The balance sheet will be drawn up in the concluding observations (Section 6).

Keywords: International Criminal Law, International Criminal Proceedings, ECCC, ICTY, ICC, Investigating Judge

JEL Classification: K33