Beyond 'Fairness': Understanding the Determinants of International Criminal Procedure
43 Pages Posted: 5 Nov 2009
Date Written: March 4, 2009
This article seeks to explore what makes international criminal procedure what it is. Rather than simply assessing its fairness in a decontextualised fashion, it proposes a realist and parsimonious explanation of the determinants of international criminal procedure. Two paradigms are contrasted and both found to provide only limited explanation. One is the idea that the main driving force behind the development of procedure before international criminal tribunals is the confrontation of the common law accusatorial and the romano-germanic inquisitorial traditions. Although clearly that confrontation has helped frame the problem, it is not solvable on its own terms, and ultimately too embedded in assumptions each tradition makes about what defines the “right” procedure. The other paradigm is the idea that international criminal procedure is first and foremost an attempt to strive for the fairest possible procedure under the guidance of international human rights standards. Although again this is seen as having some framing value, international human rights law is itself too under-determinative of the issue to be conclusive in all but a few cases. The article then turns to a model described as international criminal procedure’s process of “becoming international”. International criminal tribunals have developed an international criminal procedure that is both adapted to the constraints imposed by their international environment, and the goals and values of international criminal justice. This process is identified as by far the most relevant in identifying the dynamics of international criminal procedure.
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