The Rise of Managerial Judging in International Criminal Law
76 Pages Posted: 23 Jul 2005
What do the procedure of the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY or the Tribunal) and U.S. civil procedure have in common? Dissected with theoretical tools from comparative law, these two types of procedure reveal similar skeletons. In each, judges abandoned their roles as uninformed, passive umpires to become active managers and mediators of cases with the goal of expediting the docket. Understanding this change enables us to escape from sterile debates about the triumph or defeat of adversarial or inquisitorial models. Instead, we can focus on what really matters: 1) how elements of a procedural system relate to each other; 2) how legal culture impacts procedure, and 3) how procedural systems change over time.
As its main claim, this article demonstrates that the managerial judging system explains the current procedure of this international tribunal. Scholars articulated this system in order to describe similar developments in U.S. civil procedure. The managerial judging system conceives procedure as a device that the court, with the parties' assistance, wields to expedite process. Unlike the passive and uninformed court of the adversarial system, the managerial court gets information about the case very early in the process in order to actively pressure the parties to reach factual and legal agreements and accelerate their pre-trial investigations and trial cases. But unlike the court of the inquisitorial system that actively investigates the truth, the managerial court is active to make sure that the parties do not delay proceedings.
In order to explain how ICTY procedure has adopted a managerial judging system, this article starts by describing the adversarial and inquisitorial systems of common and civil law. Legal actors brought to the Tribunal the cultural conceptions of criminal procedure prevailing in their domestic jurisdictions. The initial predominance of common law actors partly explains why ICTY originally adopted an adversarial system. Practical needs of the Tribunal to expedite the docket - rather than the predominance of common or civil law actors - have driven the later move of the Tribunal from the adversarial to the managerial judging model.
By explaining how the managerial judging model best captures the current procedure of ICTY, this article puts this procedure in a completely new light. Up to now, there have been two competing characterizations of ICTY procedure, both unsatisfactory. The first views ICTY's procedure as sui generis, without parallel in any national jurisdiction. This article will challenge this characterization by showing that the managerial judging system typifies both U.S. civil procedure and ICTY criminal procedure. According to the second position, ICTY's procedure is a hybrid between adversarial and inquisitorial conceptions of the criminal process. One problem with this position is that there are many potential hybrids or combinations between the adversarial and inquisitorial systems. If our analysis stops here - as other commentators' analyses have - then merely characterizing a procedure as a hybrid between the adversarial and inquisitorial systems tells us little about it. By offering the managerial judging system as the best description of ICTY procedure, this article aims to correct that shortcoming.
Keywords: International Criminal Tribunal, U.S. civil procedure
JEL Classification: K14, K33, K40, K41
Suggested Citation: Suggested Citation