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Introduction: Common Civility – International Criminal Law as Cultural Hybrid

Published online by Cambridge University Press:  06 May 2011

Extract

On 28 and 29 October 2011, a conference was held in The Hague on International Criminal Law (ICL) as a cultural and legal hybrid. The aim of the conference convenors was to facilitate an exchange of thoughts between legal scholars, practitioners, and social scientists on the nature of ICL and to discuss the role (legal) culture plays in international criminal justice. The recent discussion is dominated by the adversarial (common law)–inquisitorial (civil law) dichotomy and centres on the hybrid nature of the procedure in international criminal law. The debate focuses on how a fair and efficient trial can be safeguarded by observing the rights of the accused and other participants through an operational criminal procedure. Sometimes, this clash of legal systems has become an end in itself, resulting in a debate on which system is superior. At least in theory, however, modern international criminal procedural law seems to have overcome the adversarial–inquisitorial dichotomy, since it combines features of both common- and civil-law systems. This unique compromise structure poses a challenge to the practitioners who – although trained in and influenced by their respective national systems – have to apply the procedural norms at the international level and, in doing so, find an appropriate balance between adversarial and inquisitorial features. This is even more challenging since the single elements of the different legal traditions do not fit together seamlessly, leading to myriad, heated disagreements over how to combine them into a single, coherent, workable legal system.

Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2011

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References

1 See, e.g., J. Jackson, Finding the Best Epistemic Fit for International Tribunals, (2009) 7 JICJ 17; C. Kress, The Procedural Law of the International Criminal Court in Outline: Anatomy of a Unique Compromise, (2003) 1 JICJ 603; Dixon, R., ‘Developing Rules of Evidence for the Yugoslav and Rwandan Tribunals’, (1997) 7 Transitional Law & Contemporary Problems 81Google Scholar, all with further references.

2 K. Ambos, The Structure of International Procedure: ‘Adversarial’, ‘Inquisitorial’ or Mixed, in M. Bohlander (ed.), International Criminal Justice: A Critical Analysis of Institutions and Procedures (2007), 429.