Unification or Fragmentation?: Structural Tendencies in International Criminal Procedure
2012 (English)In: The Diversification and Fragmentation of International Criminal Law / [ed] Larissa van den Herik; Carsten Stahn, Leiden, Boston: Martinus Nijhoff Publishers , 2012, 593-631 p.Chapter in book (Refereed)
International criminal tribunals and courts all represent procedural hybrids with tensions between adversarial and inquisitorial influences. Any effort to establish a universal code of procedural law governing international trials is met with great difficulties. Part of the explanation is that international criminal procedure, as all other branches of law, is subject to competing objectives. The aim of this article is to examine tensions between objectives in international criminal procedure and suggest an approach that may guide courts in their adjudication of hard cases. A hard case concerns a concrete legal issue and is at hand when it is uncertain whether it should be subsumed by a legal rule.
This article examines which appraisals of objectives can be made to arrive to certain solutions and whether a method of general applicability is available. Are the objectives the same for various procedural matters? Does the balance between different objectives differ between various procedural matters? Is it possible to justify different solutions with reference to one or several objectives? In other words, can we find a universally acceptable hierarchy of objectives? The aspiration is to outline a web of various objectives, reflected in legislation, case law and offer the practitioner a useful perspective when confronted with a procedural matter.
Place, publisher, year, edition, pages
Leiden, Boston: Martinus Nijhoff Publishers , 2012. 593-631 p.
, Leiden Studies on the Frontiers of International Law, ISSN 2212-4195 ; 1
International criminal procedure, fragmentation, differentiated functional approach
Law and Society
IdentifiersURN: urn:nbn:se:uu:diva-209352ISBN: 978-90-04-21459-0OAI: oai:DiVA.org:uu-209352DiVA: diva2:766779