A Spectrum of International Criminal Procedure: Shifting Patterns of Power Distribution in International Criminal Courts and Tribunals

Abstract

International criminal procedure is characterized by a fundamental structural shift in the allocation of power between the actors in a criminal trial – the judges, prosecution and defense - away from that traditionally ascribed under an adversarial system and towards the power distribution structure more common to the inquisitorial system. By looking at the Statutes and the Rules of Procedure and Evidence of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Court (ICC) and the Extraordinary Chambers in the Courts of Cambodia (ECCC), it is possible to identify varying degrees of power shifts in each court: across each we see a convergence around the transferal of procedural powers away from the individual parties and into the hands of the judge(s), shifting the power structure away from adversarial norms in favor of more traditional inquisitorial role assignments. This degrees of shift evident at these courts and tribunals are worthy of exploration in order to illuminate the aspects of power distribution and procedural devices, originating from which system, have been employed in the new model(s) of ICP seen at these three courts. To call them models of procedure is more appropriate that talking of a single model applicable across all the international courts and tribunals, as each displays unique characteristics and with no precise uniformity in each court’s rules. What are evident are convergences around structural ideas relating to the power relationships between the three main actors in the system, and the adoption of devices in furtherance of the overall goal of each court of having the judge as an active participant in proceedings.