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
Date Written: March 19, 2010
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
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