Saturday, April 17, 2010
Jens David Ohlin (Cornell Law School) has posted A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law (UCLA Journal of International Law and Foreign Affairs, Vol. 14, pp. 77-120, 2009) on SSRN. Here is the abstract:
International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence of domestic procedural law. This suggests a theoretical insight: the anti-impunity norm and its concern with punishment should be read in tandem with a meta-theory that emphasizes that international criminal procedure has an irreducibly intrinsic value because it returns legal process to procedural vacuums. The present literature generally ignores this non-consequentialist value. In addition to this theoretical reorientation, several practical consequences follow, including a revised understanding of the principle of legality, the importance of local procedures, the use of guilty pleas and plea bargaining, and in absentia trials. Although the meta-theory does not dictate which of these procedural devices should be used, it does provide a new standard with which to evaluate them.