Pluralism in International Criminal Procedure

Over the last two decades, international criminal procedure has become a recognized body of law, with textbooks, treatises, and law review articles discussing its rules and principles and theorizing its goals and methods. The term refers to the procedures used at the international criminal courts and tribunals created to address some of the most serious offenses, such as genocide, crimes against humanity, and war crimes. Some of these courts are fully international, like the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the permanent International Criminal Court (ICC). Others are “hybrid courts,” featuring a mix of domestic and international personnel, laws, and practices and including the Special Court for Sierra Leone (SCSL), the East Timor Special Panels for Serious Crimes, the Bosnia and Herzegovina War Crimes Chamber, the Extraordinary Chambers in the Courts of Cambodia (ECCC), and the Special Tribunal for Lebanon (STL). More hybrid courts are being created and proposed today, even as the appetite for international institutions appears on the decline. 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. Can the diverse procedures used by these institutions be treated as part of a single, coherent system? Is international criminal procedure a blend of domestic traditions or a sui generis body of law, reflecting the special goals and needs of international criminal trials? What goals does it pursue, and how does it balance competing objectives? 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.