Thursday, April 12, 2018
Even as international criminal courts have proliferated and international criminal procedure has attained recognition as an independent corpus of law, foundational questions about the field remain.
Part II of the Chapter traces the development of modern international criminal procedure, first at the ad hoc tribunals for the former Yugoslavia and Rwanda and then at hybrid courts and the International Criminal Court. Part III discusses the ambitious and at times conflicting goals that international criminal procedure is said to pursue. These include goals commonly associated with domestic trials — providing a fair trial, establishing the truth, and enforcing the criminal law effectively. But some commentators believe that international courts — and by extension, the process these courts rely upon — also pursue broader, political goals, such as promoting the rule of law, fostering peace and reconciliation, creating a historical record as a means to educate future generations, and providing a sense of closure for injured individuals and communities. The international community has failed to agree on a clear ranking of these various objectives, however, and debates persist about which goal should take precedence when different goals are in tension. As Part IV documents, the disagreement about priorities helps explain much of the diversity we see in international criminal procedures, both across different courts and within the same court.
Accordingly, international criminal procedure is currently not a coherent legal system, but is rather best described as the product of a decentralized “network” or “community” of courts. Part V offers an evaluation of the pluralist character of international criminal procedure. While the diversity of procedures can help international criminal courts arrive at solutions that address more effectively the unique political, practical, and forensic challenges of dispensing international criminal justice, divergent procedural approaches within the same court raise concerns about predictability and equal treatment.