International criminal procedures

Introduction

From the Nuremberg trials and onwards, the need to develop a new procedural system for any new international criminal tribunal has been acknowledged. Such a procedural system would be sui generis in the sense that it would depart from any one domestic system or legal tradition. But, inevitably, it would have elements from the major domestic legal systems of the world, also enhancing the perceived legitimacy of the tribunal and its proceedings. In this chapter we will focus on the procedures that have developed for the ICTY, ICTR and ICC and consider how they blend elements from different legal traditions.

Different legal traditions

There is a significant distinction in the criminal procedures of two major domestic legal traditions: the common law tradition (or Anglo-American tradition) and the civil law tradition (or Continental or Romano-Germanic tradition). While these traditions go beyond the system of criminal procedures, the common law model is said to be ‘adversarial’ or ‘accusatorial’ and the civil law model ‘inquisitorial’. No domestic system represents a pure model, however, and there are considerable differences between systems belonging to the same tradition. Moreover, some systems, e.g. in Scandinavia, do not really belong to either of the two traditions. In spite of shortcomings, we will here use the terms ‘adversarial’ and ‘inquisitorial’ to describe in a general sense differences attributed to the two traditions, but also, on occasion, resort to the common law and civil law labels.