What are the Objectives of International Criminal Procedure? - Reflections on the Fragmentation of a Legal Regime

18 Pages Posted: 20 Mar 2010 Last revised: 20 May 2011

Mark Klamberg

Stockholm University - Faculty of Law

Date Written: March 19, 2010

Abstract

International criminal courts pursue several objectives including retribution, deterrence, creating a historical record and giving a voice to the victims while the rights of the accused are protected. A problem is that these objectives pull in different directions creating tensions and fragmentation in the procedural system. Numerous legal issues, referred to as ‘hard cases’, entail a choice where the Judge has to make a choice between two or several objectives. In the interest of legal certainty solutions should ultimately be controlled by the law and not by the discretion of the Judge. This article examines whether it is possible to identify a universally acceptable hierarchy of objectives. It is argued that the relevant objectives which determine the outcome of a hard case vary depending on the procedural stage and in each procedural stage there is a structural bias towards one or several objectives. Considering that law exists as a response to several social needs, it appears as unattainable to identify a universal and fixed hierarchy of objectives.

Keywords: Fragmentation, International Criminal Procedure, International Criminal Law, Methods of Interpretation

Suggested Citation

Klamberg, Mark, What are the Objectives of International Criminal Procedure? - Reflections on the Fragmentation of a Legal Regime (March 19, 2010). Nordic Journal of International Law, Vol. 79, No. 2, pp. 279-302, 2010. Available at SSRN: https://ssrn.com/abstract=1574969

Mark Klamberg (Contact Author)

Stockholm University - Faculty of Law ( email )

S-106 91 Stockholm
Sweden
+46 8 16 11 90 (Phone)
+46 8 612 41 09 (Fax)

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