An Introduction To The International Criminal Court - Institute for ...

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Investigation and pre-trial procedure
Many of the States involved in drafting the Rome Statute initially treated
debates about the procedural regime to be followed by the Court as an
opportunity to affirm the merits of their own justice systems within an
international forum. Often, they were simply unable, because of training
or prejudice, to conceive of the possibility that other judicial models from
different cultures could offer alternative and perhaps better solutions to
procedural issues. Describing debates in the International Law Commission,
James Crawford noted ‘the tendency of each duly socialized lawyer to prefer
his own criminal justice system’s values and institutions’. 1 But, over time, the
drafters came to appreciate that there was much to be learned from different
legal systems. Of course, they also recognised that compromise was essential
if agreement was to be reached. As one observer of the Rome Conference
said so eloquently: ‘the fight between common law and civil law has been
replaced by an agreement on common principles and civil behaviour.’ 2 In
this regard, the ongoing work of the ad hoc international criminal tribunals
was of great value. Since their establishment in 1993 and 1994, the tribunals
in The Hague and Arusha have been engaged in a fascinating exercise in
comparative criminal procedure, borrowing the best from different national
legal systems and in some cases simply devising innovative and original rules.
The procedural regime of the International Criminal Court is largely a
hybrid of two different systems: the adversarial approach of the English common
law and the inquisitorial approach of the Napoleonic code and other
European legislations of the Romano-Germanic tradition (often described
as the ‘civil law’ system). This is perhaps an oversimplification, because,
within the English and continental models, there is enormous variation
1 James Crawford, ‘The ILC Adopts a Statute for an International Criminal Court’, (1995) 89
American Journal of International Law 404.
2 Hans-Jörg Behrens, ‘Investigation, Trial and Appeal in the International Criminal Court Statute
(Parts V, VI, VIII)’, (1998) 6 European Journal of Crime, Criminal Law and Criminal Justice 113 at
113, n. 2.
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