International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2014 Issue

In Review:
Recent Publications on International and Comparative Law and About Judges and Courts


International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems
Edited By Linda Carter and Fausto Pocar. Edward Elgar, Publisher. 2013

International Criminal Procedure: The Interface of Civil Law and Common Law Legal Systems

Reviewed by: James G. Apple, Editor-in-Chief, International Judicial Monitor and President, International Judicial Academy

International criminal law has come a long way since the Nuremberg Tribunal and the Pacific Tribunal, both international criminal tribunals created and functioning in the years following World War II. New international criminal courts came into being in the 1990s and during the first decade of the new century and new millennium, including the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court.

One of the issues confronting these new tribunals related to the issue of procedures – there were no guidelines on how such courts should function procedurally. They had to use whatever procedures that were developed and used successfully by the post World War II military tribunals, and also by developing ad hoc rules of their own.

Another major issue facing the new tribunals was: to what legal systems should we look to for guidance – the common law system or the civil law system. The two editors, who are the authors of the first essay in the group of essays that form this new work on international criminal procedure, provide the answer: they generally used some procedures from each system.

The book begins with an analysis of the latter issue, with the authors dividing the new tribunals into two distinct types. The first type is the truly international tribunal, such as the ICC, the ICTFY, and the ICTR. In the second category are those tribunals that “are not purely international institutions.” They are “hybrids” or “mixed system” tribunals. Examples of this latter kind are the Special Chamber of the Supreme Court of Kosovo, the Special Court for Sierra Leone, the Panels with Exclusive Jurisdiction over Serious Offenses in East Timor, the Extraordinary Chambers in the Courts of Cambodia, and the Special Tribunal for Lebanon.

The authors comment:

Irrespective of their denomination, these courts and tribunals are all intended to deter future violations of international law and ensure the end of impunity for individual leaders and participants. However, their characterization does present different issues with respect to applicable law and enforcement and cannot be regarded as uniform from the legal point of view.

The authors further comment that the character of these judicial bodies as genuinely international or comparable to national courts “inevitably affect their RPE” (Rules of Procedure and Evidence). However they also note that there are certain basic conditions that such tribunals have to take into account.  These are

[F]irst, the somewhat obvious consideration that any criminal court needs some form of procedural and evidentiary rules to govern its proceedings; second, the need for any such rules to be inspired by principles of fairness and due process; third, the assessment that the rules should ensure an efficient conduct of investigations, prosecutions and trials within which a court is set up.

Several pages of the first chapter are devoted to certain procedural differences between the common law and civil law systems. However, of special importance is the following observation:


Although the civil law and common law traditions differ in many respects, systems derived from each tradition have a common grounding in fundamental rights accorded the accused. Major human rights treaties apply in virtually all countries. The International Covenant on Civil and Political Rights (ICCPR) has 167 States Parties. All 47 members of the Council of Europe are parties to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). The American Convention on Human Rights (ACHR) with 24 States Parties and the African Charter on Human and Peoples Rights (ACHPR) with 53 States Parties, similarly embody the basic rights of an accused person.

The fundamental rights from human rights treaties pertain to pretrial, trial and post-conviction stages.

After the general commentaries about the issues raised by the creation of new international criminal tribunals, the authors in subsequent chapters turn their attention to specific parts of criminal procedure found in one or the other or both of the two systems. These chapters address plea bargaining, witness “proofing” (preparing a witness for trial), written and oral evidence, self (pro se) representation, and the use of standby and amicus counsel, the role of victims in the international criminal justice process, and appeals of criminal convictions.

Considering that most judges and lawyers in common law countries know little or nothing about the civil law system, its content and procedures, and most judges in civil law countries know little or nothing about the content and procedures of the common law, this book is particularly valuable in contrasting the two systems in the context of criminal law. Representatives of both systems will find much information about not only how the two systems function, but also how international law uses  principles from both systems to create a new international criminal procedure jurisprudence.

One example of this approach is an analysis of “two key foundational characteristics” of criminal procedure in the two systems. These two characteristics are “the dominant goal of the trial” and “who is in control of the evidence at the trial.”  Very simply the answers are the goal of one system is the search for truth (civil law system) while the goal of the other is the resolution of the dispute between the prosecutor and the accused (common law system).

This small volume is not designed to provide an in-depth analysis of the many aspects of criminal procedure in the various international criminal tribunals, such as might be found in a criminal law and procedure course in a law school, although some parts of the text are more exploratory than others. Rather it provides the judge, practitioner, law professor or student with knowledge that there is a criminal procedure jurisprudence being developed in these tribunals, a discussion of the kinds of issues and problems that these tribunals have or must address, and how they have resolved them.

There is not yet a large organized bar of international criminal law practitioners, and many lawyers practicing in these courts may not be familiar with the way the tribunals have addressed certain procedural issues. This volume thus provides an excellent overview of a “work still in progress,” towards the full development of an international criminal law procedure jurisprudence. It is well written, succinct, and erudite in its analysis. It should be a part of the library of every international criminal law judge and practitioner.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2014 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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