Journal of International Criminal Justice Advance Access originally published online on March 11, 2009
Journal of International Criminal Justice 2009 7(1):17-39; doi:10.1093/jicj/mqp008
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Finding the Best Epistemic Fit for International Criminal Tribunals
Beyond the Adversarial–Inquisitorial Dichotomy
*Dean and Professor of Criminal Law, School of Law, University College Dublin. The research for this article was made possible by a British Academy two year research leave fellowship during 2006–2008; by a professorial visiting fellowship at the Faculty of Law, University of New South Wales during February and March 2007 and by a Fernand Braudel senior fellowship at the European University Institute from September 2007 to June 2008. Special thanks are due to David Hunt, Máximo Langer, Paul Roberts, Sarah Summers and an anonymous referee for their written comments on earlier drafts of this article and to Laura McMahon for research assistance. [j.jackson{at}ucd.ie]
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Abstract |
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This article considers how well evidentiary processes within the international criminal tribunals match up to the challenge to provide fair and reliable verdicts. Rather than using the adversarial–inquisitorial dichotomy as the basis for exploring this question, the article takes as its reference point the well recognized norms of equality of arms and the right to adversarial procedure. It is argued that although the tribunals have met the minimum standards of fairness required by these norms, the combination of adversarial party presentation and free admission of evidence, within an evidentiary context in which it is difficult for the defence to make their own inquiries, has restricted defence access to information and its ability to challenge evidence. The article goes on to argue that some of these shortcomings have been addressed within the International Criminal Court by the establishment of a Pre-Trial Chamber but that the Chamber needs to be developed further to promote a truly participative approach to fact-finding between the parties.