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Tempered Adversariality: The Judicial Role and Trial Theory in the International Criminal Tribunals

Published online by Cambridge University Press:  06 December 2004

PETER CARMICHAEL KEEN
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Abstract

International criminal procedure (ICP) has fluctuated uncertainly between common- and civil-law procedural principles. Consensus on the principles underlying ICP is needed to ensure consistent standards of justice. The article begins by comparing criminal procedure in common- and civil-law systems, and describes the theories underlying the trial and judicial role in these systems. It then compares ICP to civil- and common-law criminal procedure. This comparison establishes the scope of judicial powers that can be exercised by international criminal judges. These powers differ from those exercised by both common- and civil-law judges. The article concludes by arguing that ICP is based on a new theory of the trial: the theory of ‘tempered adversariality’.

Keywords

civil lawcommon lawICTY/ICTR/ICCinternational and comparative criminal procedurejudicial role and powerstrial
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Tribunals for the Former Yugoslavia and Rwanda
Information
Leiden Journal of International Law , Volume 17 , Issue 4 , December 2004 , pp. 767 - 814
Copyright
© 2004 Foundation of the Leiden Journal of International Law

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