The Structure of International Criminal Procedure: ‘Adversarial’, ‘Inquisitorial’ or Mixed?
INTERNATIONAL CRIMINAL JUSTICE: A CRITICAL ANALYSIS OF INSTITUTIONS AND PROCEDURES, pp. 429-503, M. Bohlander, ed., London, 2007
39 Pages Posted: 14 Dec 2011
Date Written: December 14, 2011
This chapter analyses international criminal procedure from a structural perspective taking into account its 'adversarial' and 'inquisitorial' elements. lt examines the law of the lCTY and the ICC, including the relevant case law. This law has developed from an adversarial to "a mixed procedure" by - way of various amendments of the ICTY's Rules of Procedure and Evidence (RPE) and the drafting of the Rome Statute merging civil and common law elements into one international procedure. It is no Ionger important whether a rule is either 'adversarial' or 'inquisitorial' but whether it assists the tribunals in accomplishing their tasks and whether it complies with fundamental fair trial standards. There are various complex problems built into the ICC Statute which require creative solutions to be developed by the increasing lCC case law and the emerging doctrine on international criminal procedure. These problems and their solutions go well beyond the mere structural option for a rather 'inquisitorial' or 'adversarial' system. They refer to themes such as the difficult interplay between the prosecutor and the pretrial chamber during the ICC's pre-investigative phase (infra I.C.), the (early) participation of victims (I.C.) or the question of an efficient trial management (lll. B. 3) during all phases of the proceedings and with different leading actors. To be sure, the smooth functioning of a judicial system ultimately depends on its actors, procedural rules provide only a general framework to achieve this aim. A truly mixed procedure requires prosecutors, defense counsels and judges who have knowledge of both common and civil law and are able and willing to look beyond their own legal systems.
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