The Rise of Managerial Judging in International Criminal Law
133 Pages Posted: 18 Oct 2004
Date Written: October 18, 2004
This article puts the procedure of the International Criminal Tribunal for the former Yugoslavia (ICTY) in a completely new and previously unexplored light. Rejecting the predominant view of ICTY procedure as a hybrid between the adversarial system of the U.S. and the inquisitorial system of civil law jurisdictions, this article shows that ICTY procedure is best described through a third procedural model that does not fit in either of the two traditional systems. This third procedural model is close to the managerial judging system that has been adopted in U.S. civil procedure. The article then explores some of the implications that the discovery of managerial judging in ICTY has for both international and domestic procedures. At the international level, the article not only provides the first full-fledged model to explain ICTY procedure and its evolution over time, but also questions the widespread assumption of international policy-makers and scholars that every international criminal procedure has to be either adversarial, inquisitorial, or somewhere along a straight line between what are presumed to be the only two possible systems. At the national level, the article explains why three systems that were initially adversarial have moved in two different directions when faced with similar time pressures: U.S. criminal procedure basically has remained close to the adversarial system, while ICTY criminal procedure and U.S. civil procedure have moved toward managerial judging. By explaining these different trajectories, the article not only highlights features of U.S. domestic procedures and explains their recent evolution, but also integrates ICTY criminal procedure and U.S. criminal and civil procedures into wider debates about international criminal procedure, managerial judging, and the globalization of law.
Keywords: International Criminal Law, ICTY, Managerial Judging, Adversarial and Inquisitorial Systems, Comparative Criminal Procedure, U.S. Criminal Procedure, U.S. Civil Procedure
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