International Idealism Meets Domestic-Criminal-Procedure Realism

68 Pages Posted: 16 Apr 2009 Last revised: 8 Aug 2010

Stephanos Bibas

University of Pennsylvania Law School

William W. Burke-White

University of Pennsylvania Law School

Abstract

Though international criminal justice has developed into a flourishing judicial system over the last two decades, scholars have neglected institutional design and procedure questions. International criminal-procedure scholarship has developed in isolation from its domestic counterpart but could learn much realism from it. Given its current focus on atrocities like genocide, international criminal law's main purpose should be not only to inflict retribution, but also to restore wounded communities by bringing the truth to light. The international justice system needs more ideological balance, more stable career paths, and civil-service expertise. It also needs to draw on the domestic experience of federalism to cultivate cooperation with national authorities and to select fewer cases for international prosecution. Revised plea bargaining and sentencing rules could learn from domestic lessons and pitfalls, husbanding scarce resources and minimizing haggling while still buying needed cooperation. Finally, in blending adversarial and inquisitorial systems, international criminal justice has jettisoned too many safeguards of either one. It needs to reform discovery, speedy-trial rules, witness preparation, cross-examination, and victims' rights in light of domestic experience. Just as international criminal law can benefit from domestic realism, domestic law could incorporate more international idealism and accountability, creating healthy political pressures to discipline and publicize enforcement decisions.

Keywords: Criminal Law and Procedure, International Law, institutional design, retribution, ideology, federalism, international cooperation, plea bargaining, sentencing, adversarial system, inquisitorial system, safeguards, discovery, speedy trial, witness preparation, victims rights, ICC, International Crime

JEL Classification: K14, K33

Suggested Citation

Bibas, Stephanos and Burke-White, William W., International Idealism Meets Domestic-Criminal-Procedure Realism. U of Penn Law School, Public Law Research Paper No. 09-10; Duke Law Journal, Vol. 59, pp. 637, 2010; U of Penn Law School, Public Law Research Paper No. 09-10. Available at SSRN: https://ssrn.com/abstract=1381011

Stephanos Bibas (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
215-746-2297 (Phone)

HOME PAGE: http://www.law.upenn.edu/cf/faculty/sbibas/

William W. Burke-White

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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