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: