The Reason Behind the Rules: From Description to Normativity in International Criminal Procedure

The comparative study of criminal procedure, developed over generations of comparison between national justice systems, has become expert in applying a dichotomy. On one side of this dichotomy, a theorized adversarial tradition privileges principles of individual autonomy; on the other, a theorized inquisitorial model envisions a judicially directed quest for truth. For decades, these paradigms have occupied comparativists with determining whether national systems embody the characteristics and outcomes that the two models of criminal procedure predict. The emergence of the ad hoc and permanent international criminal tribunals in the past twenty years has challenged the utility of this typology. With the establishment of the permanent International Criminal Court (ICC or the Court), commentators rushed to apply the adversarial/inquisitorial typology to these new subjects. But as the ICC continues to mature in its practices, it provokes discussion on whether the comfortable framework of adversarial and inquisitorial systems should be used to evaluate an institution that exists in a fundamentally different context from that of national criminal justice systems. The descriptive function that this typology was generated to serve may have been superseded in the context of the international criminal tribunals. If it has, the problem currently facing international criminal justice is not to describe its institutions in relation to the logic of the common or civil law, though the common and civil law remain important repositories of wisdom and experience. Rather, the project remains at the first-phase question of deciding what rules of procedure are best suited to the unique context in which an international criminal tribunal operates.In order to avoid entangling the ICC in rules that are not tailored to fit its specific goals and institutional context, the normative purposes underlying procedural rules derived from domestic institutions should be reexamined. Where these premises do not match the specific situation of international tribunals, they and the rules based upon them should be discarded and replaced with new, deliberately defined premises and rules that owe their origins not to national systems, but to the dynamically evolving context of international criminal tribunals. This Article draws out basic principles that may be of use in reexamining the reasoning behind the rules of procedure in international criminal law. It departs from trends in current scholarship that attempt to apply the methods of comparative law to a study of international criminal procedure. It concludes by urging comparative scholars to redirect their focus from describing the procedural features of the emerging international system to engaging with the more fundamental question of what those features ought to be.