Volume 14, Issue 1 (Spring 2009)

Available in print or online at HeinOnline, Westlaw, or LexisNexis.

Trends and Tensions in International Criminal Procedure: A Symposium by Máximo Langer. 14 UCLA J. Int’l L. & Foreign Aff. 1 (2009).

In February 2009, a group of international criminal procedure scholars gathered at UCLA School of Law to discuss ongoing trends and tensions in the field. The goal of this symposium has been to bring together scholars based in North American law schools who have been doing some of the most interesting and exciting work in this area. The articles that follow are the written result of this project. Each article of this symposium makes substantial and original contributions to international criminal procedure literature. We start with three articles that analyze issues that affect international criminal procedure as a whole, and then move to one typical sequential order of the phases of an international criminal process–investigation, arrest, appointment of counsel, discovery, and trial.

The International Criminal Court Between Aspiration and Achievement by Mirjan Damaska. 14 UCLA J. Int’l L. & Foreign Aff. 19 (2009).

This article discusses an important paradox in international criminal law enforcement. On the one hand, international criminal courts attempt to tackle issues of extreme significance, and are often more ambitious than national courts of justice. However, on the other hand, these international courts often lack enforcement powers. This gap between aspirations and realization creates ammunition for the enemies of such courts and challenges their legitimacy. Despite the apparent powerlessness of international criminal courts, some, such as the Tribunal for the Former Yugoslavia, have successfully convicted a number of human rights abusers. Unfortunately, the permanent International Criminal Court has not enjoyed such success. This article describes how the ICC’s normative framework increases the likelihood of disparity between its promise and achievement, and presents solutions for the closing of this gap.

Beyond “Fairness”: Understanding the Determinants of International Criminal Procedure by Frederic Megret. 14 UCLA J. Int’l. L. & Foreign Aff. 37 (2009).

This article addresses the question of why international criminal procedure has become what it is. The frontier between creating and interpreting procedural rules has never been as thin as it is in the case of international criminal tribunals. This means something more than the pure logic of the rules must be discovered to explain their content, and the author posits this can be found in a number of dominant views about their purpose. The author begins by contrasting two popular explanations of the content of international criminal procedure: the common law accusatorial system, and the civil law inquisitorial one. This model is wanting because it fails to explain how, over time, one tradition is prioritized over the other. The author then turns to a second theory of international criminal procedure that emphasizes international human rights standards as the crucial factor in its development. This explanation is unconvincing because international human rights law is too broad and under-determinative on the issue of the “right procedure.” The author then turns to a third model, termed “becoming international.” This paradigm posits that the main ingredient in the development of international criminal procedure is a process of defining an international procedural “identity ” based on the specificity of international tribunals.

A Meta-Theory of International Criminal Procedure: Vindicating the Rule of Law by Jens David Ohlin. 14 UCLA J. Int’l. L. & Foreign Aff. 77 (2009).

International criminal procedure is in a second phase of development, moving beyond the common law/civil law dichotomy and searching for its sui generis theory. The standard line is that international criminal procedure has an instrumental value: it services the general goals of international criminal justice and allows punishment for violations of substantive international criminal law. However, international criminal procedure also has an important and often overlooked intrinsic value not reducible to its instrumental value: it vindicates the Rule of Law. This vindication is performed by adjudicating allegations of criminal violations that occurred during periods of anarchy characterized by the absence of domestic procedural law. This suggests a theoretical insight: the anti-impunity norm and its concern with punishment should be read in tandem with a meta-theory that emphasizes that international criminal procedure has an irreducibly intrinsic value because it returns legal process to procedural vacuums. The present literature generally ignores this non-consequentialist value. In addition to this theoretical reorientation, several practical consequences follow, including a revised understanding of the principle of legality, the importance of local procedures, the use of guilty pleas and plea bargaining, and in absentia trials. Although the meta-theory does not dictate which of these procedural devices should be used, it does provide a new standard with which to evaluate them.

Outsourcing Investigations by Elena Baylis. 14 UCLA J. Int’l. L. & Foreign Aff. 121 (2009).

This article addresses the International Criminal Court’s reliance on third-party investigations in the absence of its own international police force. In addition to cooperation from sometimes reluctant states, the ICC and other international criminal tribunals have come to rely on a network of NGOs and UN entities focused on postconflict justice work to provide critical evidence. The author acknowledges the problems with third-party evidence in the context of the Lubanga case and notes that the use of third-party evidence raises questions regarding confidentiality and disclosure, the integrity of the evidence-gathering process, and the equality of arms between the prosecution and the defense. The author also recognizes the benefits of outsourcing investigations to willing and capable third parties, concluding that the Office of the Prosecutor should take advantage of embedded organizations’ contextual knowledge and local connections. The author ultimately proposes two approaches the OTP could consider to effectively use NGO and UN expertise while maximizing control of its investigation: (1) the OTP could insert third-party experts already operating in the relevant areas into its investigations; and/or (2) it could develop a set of detailed guidelines for the UN and NGOs to follow in carrying out their investigations.

Structural Pre-Conditionality, Smoking Gun Evidence and Collective Command Responsibility for War Crimes in the Former Yugoslavia by John Hagan & Sanja Kutnjak Ivkovic. 14 UCLA J. Int’l. L. & Foreign Aff. 149 (2009).

The European Union is credited with compelling the arrest of Radovan Karadzic by pre-conditioning EU membership for Serbia on the apprehension and transfer of war crimes suspects to the International Criminal Tribunal for the former Yugoslavia. We demonstrate with 2005 survey data from Belgrade how this form of structural preconditionality influenced public acceptance of “smoking gun” video evidence of collective command responsibility for war crimes by Milosevic-era leaders. This public acceptance of collective responsibility was influenced by recognition of the importance of joining the EU, by support for the pro-EU Serbian Democratic Party and opposition to the anti-EU Serbian Radical Party. Local party politics created a context for a wider public acceptance of the collective command responsibility of Serbian war crimes suspects. We use a cross-level hierarchical linear model to show how this latter contextual effect had a multiplicative impact that widened acceptance of video evidence of the Srebrenica massacre. We discuss implications of the Karadzic arrest and the EU structural pre-conditionality policy for war crimes charges against the Sudanese government leadership in Darfur.

Ensuring Defense Counsel Competence at International Criminal Tribunals by Sonja B. Starr. 14 UCLA J. Int’l. L. & Foreign Aff. 169 (2009).

This article addresses the problem of incompetent representation by defense counsel in international criminal tribunals. According to the author, the ineffectiveness of a particular attorney may be attributable to a number offactors, including a lack of experience with international criminal law, unfamiliarity with the procedures of international criminal tribunals, and the simple failure to be fluent in the languages used by the court. Starr explains that the problem of incompetence persists because of obstacles to the recruitment, retention, and appointment of proficient defense lawyers, as well as the lack of administrative or judicial oversight concerning competence. The author points out the shortcomings of solutions that have already been suggested by scholars and advocates, such as establishing associations of counsel or creating an Office of the Defender within the tribunal. Finally, Starr sets forth a new method by which the International Criminal Court can hopefully avoid the incompetence problem that has plagued its predecessors. The author’s proposed solution incorporates expanded recruiting practices, intensive training programs, and a more selective appointment process.

Lead Evidence and Discovery Before the International Criminal Court: The Lubanga Case by Alex Whiting. 14 UCLA J. Int’l. L. & Foreign Aff. 207 (2009).

In this article, the author uses the case of The Prosecutor v. Thomas Lubanga Dyilo, the first trial of the International Criminal Court, to discuss the conflict between the Prosecution’s right to obtain confidential “lead” evidence as stated in ICC Article 54(3) (e) and its responsibility to disclose potentially exculpatory evidence under Article 67(2). None of the statutes or rules of ICC tribunals provide clear guidance on how this conflict is to be resolved or articulate remedies when it cannot be. The author argues that the conflict will continue to be prominent at the ICC, that the Prosecution must have robust powers to gather lead evidence, and that therefore the court should adopt an approach to resolve the conflict in the rules that maximizes the Prosecution’s ability to obtain lead evidence while protecting the rights of the accused.

Testimonial Deficiencies and Evidentiary Uncertainties in International Criminal Trials by Nancy Amoury Combs. 14 UCLA J. Int’l. L. & Foreign Aff. 235 (2009).

In this article, the author describes the flaws inherent in the process of international criminal tribunals which seek to punish the inhumane actions of dictators. The author first describes how international criminal trials confront severe impediments to accurate fact finding. It continues on to discuss the failure of witnesses in these tribunals to accurately convey the information needed to make a fully-informed decision. This problem is compounded by the fact that what clear information is provided during witness testimony often is inconsistent with the information that the witness previously provided in a pre-trial statement. The author also explores the causes behind the lack of accuracy in witness testimony, which include the lack of education or life experiences and the lack of familiarity with trial procedures.