All Roads Lead to Rome – Lifting the Veil on the icc’s Procedural Pluriformity

Abstract

Fifteen years after the entry into force of the Rome Statute, the icc still does not have a clearly defined procedural model for how to conduct its trials. In practice, different trials are conducted in a significantly different manner. On one view, this is a natural and unproblematic result of the fact that the icc’s procedural rules were deliberately drafted in an open-ended manner. On another view, the Court’s inability to adopt one specific approach is evidence of the fact that the deep conceptual divisions that prevented the diplomats in Rome from agreeing on a set of clear and precise procedural rules are still simmering – only now at the level of the judges. Whatever the case may be, the fact is that the accused before the icc do not all get the same procedural treatment. The paper aims to illustrate the icc’s current state of procedural pluriformity on the basis of two concrete examples. In particular, the paper discusses how different trial chambers have adopted dissimilar approaches towards the admission of evidence in general and the admission of prior recorded testimony in particular. These different approaches betray substantial disagreements on how to interpret and apply the principles of free proof and the principle of orality. At a structural level, the differences illustrate divergent conceptions about the burden of proof and the role of different players in the proceedings.