Creating a Hybrid System of Procedure in Int’l Criminal Law: A Blending of Adversarial & Inquisitorial Processes
by Jessica Peake T 22
he recent proliferation of international criminal courts and tribunals (ICTs) has led to the creation of another body of law, international criminal procedure (ICP). ICP
is the law that governs the procedural actions at the various international courts and tribunals and dictates the roles played by all the actors in the international criminal law sys- tem – the prosecutor, defense and judges.
What originally began as an ex- ercise in adversarial procedure at Nuremberg has now expand- ed to incorporate mechanisms found in inquisitorial systems, resulting in a hybrid between the two and blending traits of both into a single unified proce- dure. However, there is no uni- form unified procedure across the different ICTs, indeed each separate court and tribunal has blended the two mechanisms in distinct ways.
at these three courts will serve to highlight the different ways in which the international courts and tribunals have sought to incorporate adver- sarial and inquisitorial mechanisms into their par- ticular procedure, while also highlighting the fact that the procedural law of each have converged around certain similarities.
The Adversarial System The similarities across the ICTs
highlight a new trend in procedure, one that extracts the most valuable elements of procedure from both
traditions and marries them into a single structure, which may prove a useful model for domestic legal systems trying to build their own procedural cultures.
The adversarial, or common law, system is centered upon a dispute between two parties. In this dispute the prosecution and defense are in competi- tion with each other, while the judge acts as a passive um- pire. The judge is independent and, in general, the adversarial system is bifurcated, meaning that the judge acts alongside a lay jury; the lay jury decides is-
This article will first address some of the key dif- ference between the adversarial and inquisitorial systems, before moving to explore the procedural systems adopted at the International Criminal Tri- bunal for the Former Yugoslavia, the International Criminal Court and the Extraordinary Chambers in the Courts of Cambodia. While not examining the procedural systems at all the ICTs, a look
sues of fact, and the judge decides issues of law. The goal of the system is to make a determina- tion of guilt or innocence of the accused based upon the evidence presented by the parties.
Prior to trial, both prosecution and defense are re- sponsible for conducting their own investigations and gathering evidence that supports their case. There is broad prosecutorial discretion, enabling the prosecutor to choose what crimes to charge the accused with based on the evidence avail-
ILSA Quarterly » volume 22 » issue 3 » February 2014
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